Interesting People mailing list archives
[Internet Policy] Why is ISOC's PIR promoting a private global copyright censorship court for domains?
From: "Dave Farber" <dave () farber net>
Date: Fri, 17 Feb 2017 16:49:20 +0000
---------- 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. Ifthe 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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- [Internet Policy] Why is ISOC's PIR promoting a private global copyright censorship court for domains? Dave Farber (Feb 14)
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- [Internet Policy] Why is ISOC's PIR promoting a private global copyright censorship court for domains? Dave Farber (Feb 17)