Well stated here Dan. Good points. Regardless of
where this
"Draft Document" came from (Which still seems to be in dispute
at the moment) it is a far cry from reasonable or in the best interests
of ALL of the DN holders. It is defiantly a "Stacking of the
deck" towards
TM interests for relief.
I would agree also that it really doesn't matter WHO signed it,
as this
process should not be about who's who, but rather What's what.
In fact
I had heard that Dolly Parton was going to sign it as a representative
of the "Country Music Hall of Fame" as Dolly "(@)
(@)" Parton,
(to be read as Dolly "Boom Boom" Parton. But this might
just be
a vicious rumor... >;)
Dan Steinberg wrote:
Ok,Regards,I think its time to get back to matters of substance.
Ken, about a week ago you told people on the list about this document
and (if memory serves me correctly) told us that both CORE and NSI
were on board. The implication I got from that comment was 'this is
pretty good stuff'.So I looked at it. Well frankly it might seem like a compromise to you
(And business as usualy for NSI) but I don't see it as anything to
write home about.It is still skewed in favor of TM holders.
It does not incorporate (AFAIK) the suggested changes from Santiago
it puts unreasonably time/money demands on domain holders who must
come up with the resources to file lawsuits on short notice. Nowhere
else in the free world does someone who wants relief get a free ride.
Remember it is the TM holder that wanted the relief, not the domain
holder.In short, its business as usual. The second a domain holder gets
challenged their only safe recourse is to go to court as in many
jurisdictions the court system will simply not hear something that has
already been to arbitration. So once again the system is skewed in
favor of the TM holder.If you want us all to take it seriously, please come up with something
that doesnt stack the deck. What I said above is nothing new, and I am
far from the only one saying it. So why not take it back to the
drawing board and give us something thats really different (hopefully
better).
Then we'll give it a look. As written, it doesnt matter if CORE, NSI,
ICANN, the pope, Monica Lewinsky (remember her), Peter the Great and
Mother Theresa signed on. It's simply not going to work and will
cause more lawsuits, not less.Ken Stubbs wrote:
>
> > Let's make sure we are clear on all of this. An ICANN committee drafted a
> > document, and wanted public comment. The people of ICANN thought and
> > thought, and after all this thinking, the only way they could think of to
> > obtain public comment was to ask Ellen Rony if she would post it on her
> > private web site. She, under no obligation to say "yes", happened to say
> > "no", a choice she was quite free to make. And then, if you are to be
> > believed, you were stuck, with no way to get your draft document before
> the
> > eyeballs of the Internet Community. Finally a solution to this vexing
> > problem was found -- Ms. Cabell agreed to place the document on her web
> site.
> >
>
> your comment above and the assumptions it is based on are totally incorrect
> here carl .
>
> this is a draft of a product prepared as an interim solution to an "eventual
> urdp" which was prepared primarily by testbed registrars and post testbed
> registrars and NSI. the names of these people were included in the earlier
> draft which was circulated and discussed at the santiago meeting.
>
> most registrars felt that the interim dispute process most of us were using
> when we first went live (which was essentially "cloned" from the NSI
> process ) was not adequate for many reasons , the least of which was the
> arbitrary "taking down" of any site the moment a complaint was filed. we
> thought that we would try to come up with some sort of an interim product
> that would offer more "equity" on both sides and have been working on it
> since early july.
>
> this is not and was NOT the product of any "ICANN" committee. when i
> received the latest draft last week i contacted michael fromkin and sent it
> down to him with a request for his comments and asked where he might suggest
> it could be posted for "good distribution" to all sides. he suggested ellen
> rony and it sounded great to me so thats how the ball got rolling.
>
> the "people of ICANN" (whomever you are referring to her god only knows, but
> i will assume you ment the "staff") were not aware of any of MY ACTIONS at
> all.
>
> i would imagine the reason it didn't get posted to the ICANN website was
> because it was ans is not an "ICANN document"
>
> before you get totally bent out of shape you might check around and if you
> do you will find that this product , as i mentioned earlier was started
> long before the august 28 e-mail you referred to . as a matter of fact you
> have been aware of the above mentioned effort for almost 2 months in that i
> have copies of communication with you on this subject (comments re: earlier
> draft) going back to july 15th.
>
> with request to you last item here carl, my response would be that i
> honestly dont know what "secret committee you are talking about here. the
> only committe i have been involved with is the one going back well into july
>
> i look forward to and am always happy to answer & respond to any further
> questions on this document
>
> please let me know when the icann committee you are referring to is formed
> as i have been unable to communicate with icann staff on this subject since
> Santiago (i assume primarily due to the fact that they are somewhat consumed
> with the current DOC-NSI negotiations). i too would like to be involved in
> this committee
>
> best wishes
>
> ken stubbs
>
> >
>
> > Duh.
> >
> > Why didn't you simply post the document on the ICANN web site?
> >
> > >i am sorry you personally were not asked to get involved early on but
> this
> > >effort has been public knowledge and documented on the icann registrar
> and
> > >dnso registrar maillists as well as the icann site. i don't have time nor
> > >funds to hire a publicist so if you didnt hear about it, thats a shame.
> >
> > You are apparently ignorant of the fact that on the day the ICANN board
> was
> > announced, I wrote via postal mail to every member of the ICANN board,
> > volunteering my services to assist with domain name dispute policy issues.
> > Each member of the ICANN board received copies of the two law review
> > articles on that subject which I had published as of that date.
> >
> > You are also apparently ignorant of the fact that on the same day that
> > ICANN posted on its web site that "the President or his delegate should
> > convene a small drafting committee including persons selected by him to
> > express views and consider the interests of the registrar, non-commercial,
> > individual, intellectual property, and business interests," I wrote to the
> > Board of ICANN offering to serve on this committee.
> >
> > You are also apparently ignorant of the fact that the response to me from
> > ICANN on August 28 was:
> >
> > "Carl, thanks for volunteering. We will let you (and everyone) know
> shortly."
> >
> > Well, the part about letting "everyone know shortly" didn't happen. Nor
> > did the part about letting me "know shortly" happen.
> >
> > Instead, the secret committee got formed, and has been in existence now
> for
> > some time. I only know about it because Prof. Froomkin posted a URL for a
> > CNET story that hinted that the committee may have been formed. The fact
> > of the committee having been formed remains unmentioned on the ICANN web
> > site. ICANN has not disclosed the membership of the secret committee on
> > its web site or anywhere else. And the committee apparently lacks even
> one
> > person who has the experience of representing in court a target of reverse
> > domain name hijacking.
> >
> > To this day, a visitor to the ICANN web site would only see that there is
> a
> > *plan* to appoint this committee, and would see nothing to indicate that
> > the committee has actually been formed. A visitor to the ICANN web site
> > would have no way of finding or reading the draft policy. The only place
> > where the draft policy can be found is on an *unlisted* page of Ms.
> > Cabell's web site, a page that you cannot click to from the main page of
> > Ms. Cabell's web site, nor can you click to it from the ICANN web site.
> It
> > is a page that one can reach *only* if one *already knows the unlisted
> > URL*, a piece of information missing from the ICANN web site.
> >
> > Most members of the Internet Community, including those who read the ICANN
> > web site carefully, would have no way of knowing that they should be
> > offering their comments regarding this draft policy, they would have no
> way
> > of learning that it has been posted in this out-of-the-way place, they
> > would have no way of knowing to whom they should direct their comments.
> >
> > You say that "this effort has been public knowledge and documented on ...
> > the icann site," but what you say is just not true.
> >
> > >i will again assure you that this is an interim document and the final
> > >process will be vetted thru ICANN. as you all know by now, ICANN is
> vested
> > >with the responsibility of development of a urdp which all registrars
> will
> > >have to adopt in the future.
> >
> > Yes, that is what I feared. The document you have floated is entitled
> > "Model Domain Name Dispute Resolution Policy for Voluntary Adoption by
> > Registrars", yet now you reveal you intend that registrars will not have a
> > choice about it. If the document you have floated gives a false
> impression
> > to the Internet Community about this aspect of yours (or ICANN's)
> > intentions, I have to wonder in how many other ways it gives false
> > impressions as to your intentions.
> >
> > My complaint is that ICANN ought to accept committee support for its
> > dispute policy drafting committee from people who have actually litigated
> > lawsuits on behalf of domain name owners who are the targets of reverse
> > domain name hijacking. NSI has been sued dozens of times by innocent
> > domain name owners who are targets of reverse domain name hijacking under
> > its dispute policy, and there is no reason to think ICANN would somehow be
> > exempt from this if it ends up forcing a similarly flawed policy down the
> > throats of all of the registrars (and the throats of all of the domain
> name
> > owners). A policy regarding how things are to be done in the kitchen is
> > apparently going to be drafted by a group of people who either (1) haven't
> > ever been there, or (2) make their living asserting trademarks against
> > accused infringers.
> >
> > Mr. Stubbs, it would be most helpful if you could actually respond to the
> > criticism as stated. What explanation, if any, do you offer for ICANN's
> > having failed to include on its secret drafting committee anyone who has
> > actually been in court defending a target of reverse domain name
> hijacking?
> >
> >
> >--
Dan SteinbergSYNTHESIS:Law & Technology
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