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

[David Farber <dave () farber net>]

> X-Sender: jcamp () camail1 harvard edu
> Date: Thu, 6 Dec 2001 08:42:15 -0500
> To: farber () cis upenn edu, ip-sub-1 () majordomo pobox com
> From: Jean Camp <jean_camp () harvard edu>
>
> Dave Crocker said
> > >   For one thing, it is usual to permit plaintiffs to select their venue.
>
>
> In what legal tradition? This is one of the significant dispute in UCITA 
> that the vendor can choose any environment in which to take forward legal 
> complaints. The plaintiff may select but the defendant can object In a 
> Different Forum. Thus the range of court decisions which disagree across 
> jurisdictions -- plaintiffs and defendants each choose different forums.
>
> Efforts to prevent forum-shopping are included in much legislation and 
> dispute resolution. That is why the selection of a court is an issue even 
> when a criminal defendant (when the _executive branch of the state_ is the 
> plaintiff here) feels a particular court or region is biased.
>
> Forum-shopping may be long extant but it also a known flaw, not a feature, 
> and courts in one forum (like the famous Judge Greene) may take very badly 
> to forum shopping. In general when one party has more power (e.g. the 
> executive branch vs a defendant) the other party is given more 
> opportunities to appeal a particular forum (in the judiciary).
>
>
> > > Dave Crocker said
> > > 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.
>
> Not giving one party full control of the venue --for example allowing 
> appeals should a particular court appear biased  -- is government 101. For 
> example, in the US in particular this allows states to create different 
> business and consumer environments. The consumer then has a right to his 
> own state laws (see the anti-UCITA bills) and a business plaintiff cannot 
> change that fact.
>
> Also, I might point out this is a small procedural change, not one which 
> would require any significant changes in ICANN's structure or philosophy.
>
> This is government 101.
>
> Finally, and I am SPECIFICALLY NOT accusing Dave here, I have had in a 
> single class of 20 a Jordanian, an Israeli, a Greek and a Turk. Despite 
> more significant historical differences they managed not to toss around 
> suggestions of each other's motivations. Let us try to follow their 
> example in discussing the far less deadly and loaded issue of domain names.
>
> -Jean
> --

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