IP: Two good comments on Eric Lee Green on what "cyber-libertarians" don't get

[David Farber <dave () farber net>]

> To: dave () farber net
> X-Mailer: Lotus Notes Release 5.0.1a August 17, 1999
> From: chris () maroney com
>
>
> Dave,
>
> Without taking a general position on the merits of private courts, I can
> say that the flaw in ICANN's dispute resolution procedure that encouraged
> eresolution.com to fold its tent is simple, well-understood and easily
> fixed.
>
> ICANN allows the 'plaintiff' - that is, that party that doesn't have the
> domain name but wants it - to choose the dispute venue from the list of
> sanctioned ICANN dispute resolution providers.  Naturally, the 'plaintiff'
> chooses a venue that will most likely take the domain away from the current
> owner, which is usually WIPO or the National Arbitration Forum.  So venues
> like eresolution.com that tend to be more evenhanded rarely if ever get
> chosen.
>
> The obvious solution is to randomize the dispute venue in some manner.
> This solution is so obvious (and has been suggested so often) it makes one
> suspect that ICANN is trying to make it easier for 'plaintiffs' and harder
> for 'defendants'.
>
> So in this case, at least, I don't think the failure of eresolution.com is
> a failure of private courts in general.

> Date: Wed, 05 Dec 2001 22:02:17 -0800
> To: David Farber <dave () farber net>
> From: Dave Crocker <dhc2 () dcrocker net>
>
> At 06:47 PM 12/5/2001 -0500, you wrote:
> > > Without taking a general position on the merits of private courts, I can
> > > say that the flaw in ICANN's dispute resolution procedure that encouraged
> > > eresolution.com to fold its tent is simple, well-understood and easily
> > > fixed.
>
> Dave,
>
> Thanks for the query.
>
> Chris represents a common line of criticism and 
> recommendation.  Unfortunately, it is not at all clear that the UDRP 
> outcomes are flawed, but it is very clear that the proposed solution will 
> create a problem.
>
> There have been two major reports attempting to criticise the UDRP process 
> and history.  Both have listed raw data that shows some strong tendencies 
> about outcomes.  From this is drawn the conclusion that the tendencies are 
> due to bias.
>
> The cliche "correlation does not prove causation" points to the difficulty 
> with jumping to such conclusions.  They suffer from a very serious lack of 
> adequate statistical analysis methodology.  For example, they do not even 
> ask whether there is a pattern of incorrect decisions.  That is they note 
> the numbers, but do not inspect the actual validity of those 
> outcomes.  They even gloss over the fact that many defendants do not 
> contest the claim against them, thereby losing by default.  Would changing 
> the procedures or the UDRP dispute organizations somehow change this?  I 
> think not.  Remember that the UDRP is an exceptionally INexpensive 
> mechanism, relative to the legal alternatives.
>
> These critics do cite a few, specific outcomes that were wrong and then 
> claim that this proves the entire system is flawed.  However the number of 
> UDRP decisions that are generally agreed to have been flawed is a tiny 
> percentage of the total -- frankly they probably represent a smaller 
> percentage than happens in courts of law for most democracies.  This 
> suggests that nothing short of perfection -- perfection in they eye of the 
> critics -- is acceptable to the critics.  Unfortunately, no one knows how 
> to construct a perfect system for human decision making.  That leaves us 
> with the real world.  And in that world, the UDRP outcomes appear to have 
> a pretty good track record.
>
> So, yes, plaintiff attorneys do take note of UDRP venues that have a track 
> record favoring the plaintiff, but remember that there are many reasons 
> the venue could have that track record.  Rather than WIPO being biased in 
> favor of plaintiffs, perhaps, the less favorable venue has been 
> unreasonably biased against plaintiffs.  What is interesting about such a 
> possibility is that it would mean that that venue should go out of 
> business.  In fact at least one of the eResolutions judges is enormously 
> biased in his public statements.  So perhaps eResolutions lost out because 
> IT was unreasonable, not that the other venues were.
>
> Any reasonable effort to critique the UDRP process needs to consider a 
> range of different explanations for the observed statistics and then find 
> reasons for rejecting or supporting particular ones.  Starting with only a 
> single explanation and then arguing why it is right is sales, not research.
>
> So, alas, the claim that the UDRP is functioning badly is a claim not yet 
> based on substance.
>
> The claim that eResolutions lost out because it is unfair to let 
> plaintiffs choose their venue is equally unsubstantiated.  For one thing, 
> it is usual to permit plaintiffs to select their venue.  For another, one 
> needs to note the strength of good brand equity.  WIPO has rather more of 
> it than eResolutions had.  A free market is really a pain.  It means that 
> people with less brand recognition have an uphill struggle.
>
> And that brings us to the "solution" of random assignment.  What an 
> excellent way to ensure that there is absolutely no incentive for a UDRP 
> venue to do a good job.  After all, it is assured of business no matter 
> how well it functions.  Yes, legitimately free markets really are a pain.
>
> We need to remember L. Mencken's "For every complex problem there is a 
> simple solution... And it is wrong."
>
> The "obvious" solution fixes a problem that well might not exist, but it 
> ensures that there will be a new problem that is serious.
>
> If it turns out that there is a legitimate need to make the choice of UDRP 
> venue not be controlled entirely by the plaintiff, then it needs to use a 
> mechanism that balances the choice between plaintiff and defendant 
> equally, rather than eliminating all choice.
>
> d/
>
> ----------
> Dave Crocker  <mailto:dcrocker () brandenburg com>
> Brandenburg InternetWorking  <http://www.brandenburg.com>
> tel +1.408.246.8253;  fax +1.408.273.6464

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