IP: ICANN roundup; study says domain name dispute process is biased

[Dave Farber <dave () farber net>]

------ Forwarded Message
From: Declan McCullagh <declan () well com>

Also of interest to ICANNeers, Marc Schneiders sends this along:
> Do you want to keep the right to vote for directors of ICANN,
> the body that manages domains and IP addresses (and interferes
> through trademark issues with free speech...)? Then, please, sign up
> at
> http://www.icannatlarge.com/

And the .kids (or .kids.us) hearing has been rescheduled to TODAY at 10:00
am, in room 2322 of the Rayburn House Office Building.

-Declan

---

Date: Thu, 7 Mar 2002 08:43:30 -0500
To: declan () well com
From: Michael Geist <mgeist () uottawa ca>
Subject: Fair.com Update - The Deal with Defaults

Declan,

Hope all is well.  I thought you and your readers might be interested in an
update to my Fair.com study that generated considerable discussion last
summer on Thursday.  The update, which now covers 4,332 ICANN UDRP cases
(all cases decided as of February 18, 2002) provides the first
comprehensive look at default vs. non-default cases under the ICANN
UDRP.  It can be found online at
http://aix1.uottawa.ca/~geist/fairupdate.pdf

The original Fair.com study at
http://aix1.uottawa.ca/~geist/geistudrp.pdf

All the updated data, searchable by panelist, at
http://www.udrpinfo.com

A column providing the highlights is at
<http://www.globeandmail.com/servlet/GIS.Servlets.ArticleNews/relatedstories
/gam/20020307/TWGEIS>

The update reaches the following conclusions:

1.      There have been no changes in forum shopping concerns raised in
original study as caseload and case outcomes remain roughly the
same.  Moreover, in the intervening period, eResolution, the arbitration
provider most affected by forum shopping, has gone bankrupt.

2.      Case allocation concerns have gone from bad to worse.  NAF's top
six panelists have now decided 56.4% of their single panel cases with
complainants winning over 95% of the time.  WIPO's two respondent-friendly
panelists have still yet to receive a case (2250 cases and counting) and
the provider's 124 panelists with 5 or more single panel cases have now all
ruled in favor of complainants at least 50% of the time.

3.      Default cases constitute 54% of all cases.  Contrary to some
claims, there are differences between providers on default cases. NAF rules
in favor of complainants 98% of the time in default cases, followed by WIPO
at 92% and eResolution at 79%.  In fact, several leading NAF panelists have
never ruled in favor of a respondent in a default case.

4.      There is no significant difference in percentages when accounting
solely for non-default cases (as NAF and other critics argued was
necessary).  In single panel non-default cases, WIPO and NAF both rule in
favor of complainants around 70% of the time.  By contrast, eResolution
rules in favor of complainants 50% of the time. This is virtually the same
percentage difference as when all cases (default and non-default) are
examined.

Similarly, the difference between single panel and three-member panel in
non-default cases remains unchanged from the overall numbers. Complainants,
who still surprisingly request the majority of three-member panel cases,
win 68% of single panel cases but only 46% of three-member panel
cases.  The 22% differential is nearly identical to the 23% differential
when all cases are accounted for.

In other words, claims that provider and panel composition differences can
be explained by the inclusion of default cases are simply wrong.  There are
(or at least were) critical differences between providers and between the
outcome in single vs. three-member panel cases.

Regards,

MG
-- 
**********************************************************************
Professor Michael A. Geist
University of Ottawa Law School, Common Law Section
57 Louis Pasteur St., P.O. Box 450, Stn. A, Ottawa, Ontario, K1N 6N5
Tel: 613-562-5800, x3319     Fax: 613-562-5124
e-mail: mgeist () uottawa ca
URL:    http://www.lawbytes.ca


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