IP: What about our right to trial by jury? D.Post on ICANN

[Dave Farber <farber () cis upenn edu>]

> Date: Fri, 08 Sep 2000 09:47:59 -0400
> To: politech () politechbot com
> From: Declan McCullagh <declan () well com>
>
> ********
>
> http://www.temple.edu/lawschool/dpost/Juries.html
>
> Juries and the New Common Law of Cyberspace
>
> David G. Post
> Plugging In, September 2000
>  "In Suits at common law, where the value in controversy shall exceed 
> twenty dollars, the right of trial by jury shall be preserved, and no 
> fact tried by a jury shall be otherwise re-examined in any Court of the 
> United States, than according to the rules of the common law."
> A confession:  I don't spend a lot of time thinking about the 7th 
> Amendment to the US Constitution, quoted in full above.  Even worse, I 
> tend to think about it only when I receive a summons to jury service (to 
> which I react with something less than unbridled enthusiasm) or to a news 
> report of some runaway jury award -- the million dollar "hot coffee 
> judgment," stuff like that.  The 7th Amendment just does not give me that 
> warm and fuzzy feeling I get when contemplating, say, the First Amendment, 
> or the Fourth.
>
> But I'm starting to come around.  The constitutional system of the United 
> States is based on a very simple idea:  that the people are sovereign, 
> that all law-making power derives ultimately from them, and that law 
> cannot legitimately be imposed upon them unless they have a voice  an 
> equal voice, at that -- in its creation.  In Thomas Jefferson's 
> always-quotable words, "the essence of a republic is action by the 
> citizens, in person in affairs within their reach and competence, and in 
> all others by representatives, chosen, and removable, by themselves." 
> These principles:
> ". . . form the bright constellation which has gone before us and guided 
> our steps through an age of revolution and reformation. The wisdom of our 
> sages and blood of our heroes have been devoted to their attainment. They 
> should be the creed of our political faith, the text of civic instruction, 
> the touchstone by which to try the services of those we trust; should we 
> wander from them in moments of error or alarm, let us hasten to retrace 
> our steps and regain the road which alone leads to peace, liberty, and safety."
> Ringing words.  The notion of actually building a government on this 
> "bright constellation" of ideas was deeply and profoundly radical when the 
> Constitution was framed; in 1787, governments that could even claim to be 
> based on these principles were few and far between, to put it mildly.
>
> But over the past 200 years or so the idea that the people are sovereign 
> has been transformed -- rather remarkably, when you think about it -- into 
> a kind of "self-evident truth," a principle whose validity we take 
> completely for granted and which we never seriously question.
>
> The Constitutional system erected in 1787 is one way not the only way, to 
> be sure -- to implement this principle.  The citizenry elects (Article I) 
> representatives to sit in the law-making legislative body; they elect 
> (Article II) a Chief Executive to oversee the ways in which law is applied 
> to them; and their elected representatives themselves select (Article III) 
> those who will sit as judges when that happens.
>
> And they sit on juries.  Though we often overlook it at least, I often 
> overlook it  the right to a trial by a jury of your peers was considered, 
> and remains, an integral part of this intricate law-making system, another 
> mechanism by which popular sovereignty is expressed and the people get to 
> "make law."  Jefferson again put it nicely:
> "All power is inherent in the people (by which is meant the mass of 
> individuals composing the society).  They reserve to themselves personally 
> the exercise of all rightful powers to which they are competent  (as in 
> electing their functionaries executive and legislative, and in deciding by 
> a jury of themselves in all judiciary cases in which any fact is 
> involved); and they delegate to deputies, named and removable for 
> unfaithful conduct by themselves, or to representatives, freely and 
> equally chosen, those [powers] to which they are not competent. . . 
> .   Being competent to judge of the facts occurring in ordinary life, the 
> people have retained the functions of judges of facts, under the name of 
> jurors in all judiciary cases in which any fact is involved."
> Fine  but what does any of this have to do with cyberspace?  Here's what: 
> Like it or not, in a small, and often dark, corner of the online world, a 
> "law of cyberspace" is being made, by institutions you've probably not 
> even heard of.  These institutions will, I promise you, grow  possibly at 
> the kind of warp speed that seems to characterize most of what takes place 
> on the global network.  We can build them well, or we can build them 
> poorly.  If we build them well, we will have done much to assure the 
> continued growth of this remarkable medium; if we build them poorly, we 
> will have squandered a wonderful opportunity and set the stage for a much 
> less pleasant future.
>
> Neither I, nor anyone else, for that matter, can tell you exactly what 
> "well built" or "poorly built" institutions look like in this context; 
> this is new and untrodden ground we're walking on here.  But Jefferson was 
> right: the touchstone by which we should try the services of those we 
> trust with law-making power is whether the people subject to the law have 
> a voice in making it.  If not -- if we have wandered from this principle 
> in a moment of error or of alarm  we should hasten to retrace our steps 
> and to regain the road which alone leads to peace, liberty, and safety.
>
> How well do cyberspace's law-making institution measure up?  Well, let me 
> describe a particular set of such institutions, and you can judge for 
> yourself.  It's a bit of a tangled story, but important enough that it is 
> worth a bit of your attention.
>
> As I (and others) have described in detail elsewhere, the United States 
> government turned over management of the Internet's domain name system to 
> a private group, the Internet Corporation for Assigned Names and Numbers 
> (ICANN), in 1998.  Last November (1999), ICANN adopted something called 
> the Uniform Dispute Resolution Policy (UDRP)  that's it for acronyms, I 
> promise.  The UDRP was designed to deal with a set of conflicts that had 
> arisen on the Net -- specifically, the well-publicized clashes between 
> trademark holders and so-called "cybersquatters" over possession of 
> particular domain names in the popular *.COM, *.ORG, or *.NET 
> domains:  the clash, for instance, arising out of Zippo, Inc.'s claim that 
> its trademark in the word "zippo" entitles it to the domain name 
> "zippo.com," or Porsche, Inc.'s claim that its trademark in the word 
> "porsche" entitles it to the domain name "porsche.com," or Planned 
> Parenthood of America's claim that its trademark in the phrase "Planned 
> Parenthood" entitles it to the domain name "plannedparenthood.org," or any 
> of the dozens of other disputes like these that have made their way into 
> courtrooms around the world.
>
> The UDRP states that the trademark holder is entitled to the domain name if:
> (i)     the domain name is "identical or confusingly similar to" the 
> trademark in question;
> (ii)    the domain name holder has "no rights or legitimate interests in 
> respect of the domain name," and
> (iii)   the domain name holder has registered, or is using, the domain 
> name "in bad faith."
> The UDRP relies on a system of private arbitration to apply this rule to 
> particular cases; trademark holders can submit claims under the UDRP to 
> arbitration panels, chosen from a list of ICANN-approved dispute 
> resolution service providers, for a decision about whether or not those 
> three conditions have been satisfied in any particular case.  In the nine 
> months since this process was put in place, over 2000 cases have been 
> submitted to UDRP panels and over 1500 decisions handed down; with the 
> filing rate steadily increasing, the dispute pipeline may well have three 
> or four thousand cases in it by the end of this calendar year.
>
> Is the UDRP "law"?  Well, we could have an interesting philosophical 
> discussion about that  "what is law?' and all that.  But I'll save that 
> for the classroom and the scholarly journals.  If it walks like a duck and 
> quacks like a duck, it's a duck (even if it has a sign around its neck 
> that says "I'm a dog."). The UDRP walks and quacks like law.  It sets out 
> a rule for deciding between competing claims to possession of particular 
> resources.  It sets up a process to apply that rule on a case-by-case basis.
> And it is binding upon those in possession of the resource in question; in 
> the event of an adverse ruling, the domain name holder will relinquish 
> possession of the contested domain name.
> [[How do I know that?  Because ICANN will not permit anyone to offer 
> *.COM, *.ORG, or *.NET domain names to the public  to become, in the 
> jargon, a "registrar" of domain names  unless they agree to abide by the 
> decisions of UDRP panels.  As a result, whomever you may have obtained 
> your domain name from has already agreed to revoke your domain name 
> registration, and to transfer the registration to someone else, if told to 
> do so by one of these UDRP arbitrators.]]
>
> [[It is, in fact, a little more complicated even than this; the losing 
> party in a UDRP dispute does not relinquish the right to take the matter 
> to court.  So the decisions of the UDRP panels, while binding on domain 
> name holders, are not final judgments, at least in theory.  But 
> possession, as the old cliche has it, is sometimes nine-tenths of the law; 
> as a practical matter, only a minuscule handful of the over 1500 decisions 
> that have handed down under the UDRP have been appealed to local courts.]]
> The UDRP, furthermore, is applicable globally; no matter where you happen 
> to reside, no matter where the entity from whom you obtained your domain 
> name is located, no matter where the trademark in question may be in 
> effect or where the trademark holder is located  the UDRP, as applied by 
> these arbitrators, will determine the merits of the claim.
>
> For all intents and purposes, this process is creating a new body of 
> international trademark law. Now, I don't have the instinctive distaste 
> for 'private law-making institutions' that some of my friends and 
> colleagues have.  In my judgment, the governing rules about things like 
> "cybersquatting" can be made, and made well, by non-governmental 
> institutions.  So I don't object in principle to the idea that these 
> disputes are being decided outside the traditional framework of courts and 
> legislatures and the like.
>
> But does the UDRP process measure up to our touchstone?  Do those who are 
> subject to this new law have any voice in its creation and 
> application?  Hardly.  The ICANN Board that adopted the UDRP is hardly a 
> "representative" institution; nine of its members are self-appointed, nine 
> others have been appointed by "Supporting Organizations" in which the 
> domain name holders of the world have no real voice.  [In fairness to 
> ICANN, I should point out that it is, as we speak, trying to figure out 
> some way to make its Board a more representative institution through the 
> election of five "At-Large Directors."  But as of this writing  and as of 
> the time the UDRP was adopted -- nothing has been worked out in that regard.]
>
> And what about the arbitrators?  Full disclosure:  I myself have served as 
> an arbitrator for a UDRP proceeding (Softquad Software v. Eleven-Eleven, 
> http://www.eresolution.ca/services/dnd/decisions/0143.htm), and I helped 
> set up one of the organizations  the Disputes.org/eResolution Consortium, 
> http://www.disputes.org and www.eresolution.ca that has received ICANN 
> accreditation to handle these claims.  So I'm no arbitrator-basher; the 
> organizations that ICANN has thus far accredited appear to be reputable, 
> and the arbitrators generally seem to be smart, honest folks doing a 
> reasonably good job.
>
> But they can hardly claim to reflect, in any way, the views of those who 
> are subject to their rulings.  They, too, are entirely self-appointed; no 
> mechanism exists whereby the public at large can select those in whom they 
> are willing to repose their confidence, nor is there any removal mechanism 
> to get rid of those who have, in the public's eyes, misused their 
> law-making authority.
>
> We have, it seems to me, created a law-making system without law-making 
> legitimacy, a system devoid of any means by which those on whom the law is 
> being imposed can voice their views about it and participate in its formation.
>
> A particularly critical place, then, for the institution of the jury.  As 
> mentioned above, every UDRP case must resolve the question of whether "the 
> domain name holder has registered, or is using, the domain name 'in bad 
> faith'." Why would we think that some "expert" arbitrator is better able 
> than anyone else  JohnQ () Public org -- to decide that question?  Is it "bad 
> faith" to register porsche.com because you love Porsches and want to set 
> up a "fan site"?  Is it "bad faith" to register porsche.com if you 
> represent the union representing Porsche workers?  Is it "bad faith" to 
> register porsche.com because you don't want Porsche, Inc. to have its own 
> website? Is it "bad faith" to register porsche.com if you are in the 
> business of selling second-hand Porsches?  Is it "bad faith" to register 
> porsche.com if your last name is "Porsche"?  Is it "bad faith" to register 
> porsche.com because you want to set up a website to collect critical 
> comments about Porsche automobiles?
>
> What gives me, or any of the other self-appointed experts who are serving 
> as arbitrators of these disputes, any special claim to wisdom on this 
> score?  These are precisely the sorts of questions, it seems to me, on 
> which "the people" should get to air their views, and on which an expert's 
> opinion carries no more weight than anyone else's. They are "legal" 
> questions, but those trained in the law do not have any special competence 
> to determine their answer in any particular case.  They are ultimately 
> questions about the reasonableness (or lack thereof) of conduct  just the 
> sort of question we place, under the 7th Amendment, before the jury to decide.
>
> I don't minimize the difficulties that we might face in trying to get this 
> institution off the ground.  How should UDRP juries be chosen?  What's the 
> appropriate pool of jurors?  What about language problems?  How might we 
> get people to view jury service in cyberspace as a kind of civic 
> obligation (and avoid the situation where only people with too much time 
> on their hands actually agree to serve)?
>
> But this is too serious a matter to give up without a fight.  The problems 
> are not, I suspect, insurmountable  and we won't know, in any event, until 
> we try a lot harder than we have up to now to solve them.  I'm going to 
> prepare a formal submission to ICANN on how we might accomplish this, and 
> I urge any of you who might be interested in working on this to get in 
> touch with me (at Postd () erols com).
>
> You might be thinking that this is all much ado about nothing.  It is 
> surely true that, when all is said and done, the UDRP deals with a pretty 
> narrow slice of legal questions of little concern to most people.  Efforts 
> to figure out how to make this a more legitimate process might seem hardly 
> worth the trouble.
>
> The UDRP, though, is just the opening wedge, the first step in what will 
> likely be a long journey towards the design of the new set of legal 
> institutions that will be setting rules and creating a degree of order for 
> the global network.  For better or for worse, this private law-making 
> model is likely to serve as a template for other, more complex and more 
> significant issues, whether administered through ICANN and the domain name 
> system or otherwise.  We'll be sorry  very sorry, I think -- if we don't 
> get it right.
>
>
>
>
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