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Domain Names Forum

    
FYI: There is NO CONTRACT Between ICANN and UDRP Providers
No Definition of Due Process, No Minimal Steps for Procedural Fairness, Etc
Webwork




msg:4041061
 12:22 am on Dec 11, 2009 (gmt 0)

ICANN delegates the authority to entities to take your domain away from you but, in so doing, imposes no contractual obligations, no contractual standards, no contractual procedural requirements.

Basically ICANN is creating courts without imposing any constitutional mandates, such as "no person shall be deprived of life, liberty, property OR THEIR DOMAIN . . without due process of law . ."

Nor does ICANN attempt to define minimum standards of due process WHEN IT DELEGATES AUTHORITY FOR A DISPUTE BODY TO TAKE YOUR DOMAIN.

Yes, I'M SHOUTING because I'M SHOCKED and the electric current of that shock is still coursing through my body.

HELLO? You ALL - WebmasterWorld folk: We have been in a dream state. Heretofore most domain disputes were presented to bodies that had a firm grasp - and adherence to - standards of law created and adhered to in nations with a long history of upholding certain principals - like due process, procedural fairness, etc. - and lots of experience working with the concepts.

Let's have a new UDRP body set up in Elbonia and run it according to the law of Elbonia.

RULE #1: If the complainant is an Elbonian there is a presumption that he wins . . err . . is right in his grievance.

Read this and ponder:

[forum.icann.org...]

Thank you Mr. Davies.

 

kaled




msg:4041295
 12:44 pm on Dec 11, 2009 (gmt 0)

Samantha Eisner apparently said 9 December 2009
ICANN does not currently enter into contracts with the Approved UDRP Providers, therefore no contract exists that is responsive to your inquiry.

This seems to be the crux of the matter, however, it sounds like the sort of twaddle I often read. In any genuine system of accreditation, a procedure will exist whereby that accreditation can be revoked. Ms Eisner may not recognize that a contract exists, but that does not mean that there is no contract - it just means she's probably not very bright.

Apologies for breaking the rules by quoting emails, but I like to be succinct

Kaled.

rocker




msg:4041300
 1:05 pm on Dec 11, 2009 (gmt 0)

Let's have a new UDRP body set up in Elbonia and run it according to the law of Elbonia.

RULE #1: If the complainant is an Elbonian there is a presumption that he wins . . err . . is right in his grievance.

Let's set up a UDRP body at WebmasterWorld and run it according to our rules.

Rule #1 All disputes will be ruled in favor of any WebmasterWorld member involved in dispute.

Rule #2 If both parties in the dispute are WebmasterWorld members the ruling is determined by the mods

Off Topic: webwork did you get that check I sent you? :)

Also, does this mean if I lose a dispute afterwards I can go to another UDRP that I think will rule in my favor?

wheel




msg:4042314
 2:40 pm on Dec 13, 2009 (gmt 0)

Basically ICANN is creating courts without imposing any constitutional mandates, such as "no person shall be deprived of life, liberty, property OR THEIR DOMAIN . . without due process of law . ."

Sounds American. Is that the intent?

aleksl




msg:4042358
 4:40 pm on Dec 13, 2009 (gmt 0)

webwork, you were finally hit by some #*$! domain-stealing organization like citizenhawk? :)

Webwork




msg:4042391
 6:45 pm on Dec 13, 2009 (gmt 0)

webwork, you were finally hit

Nah, aleksl, I play it too clean to attract that kind of attention. Anyone tries to muscle me is going to get hit with some imported Canadian timber. ;)

Sounds American. Is that the intent?

No. When it comes to systems of justice everyone - hopefully - borrows the best from everyone else in an effort to support the conclusion that "this system is a fair system". So nations, states, etc. borrow the best (tested) procedural concepts -> rules, etc.

Just like other realms of art and science, for law there is a fairly substantial body of experience, thought, knowledge and information to draw upon in order to chose "a system" that has a history of "working".

Now, define and craft a "working" system of domain taking justice" - crafted by the consensus of 200+/- nations, which nations are represented at ICANN by various appointed, non-legal, non-judicial - "How do YOU get this cushy job?" - err . . (word of the year) government bureaucrats.

Trial by ordeal, anyone?

In case you missed my point what you all are now facing is the emergence of Domain Dispute Panels - around the world - that adhere to no uniform system of justice.

You ever hear of "forum shopping" [webmasterworld.com]? Guess what? Now there's a chance that your domain - YOUR DOMAIN - can (and will) be taken by someone who files a domain dispute/claim in Elbonia, where the rules are . . . Elbonians and their friends win . . almost always.

Webwork




msg:4042398
 6:59 pm on Dec 13, 2009 (gmt 0)

And, just in case you fail to appreciate the ramifications of this emerging "possibility" . .

How do YOU contend with an adverse Domain Dispute Ruling - in whatever country it originates from?

How?

YOU MUST FILE A LAWSUIT to STAY/HALT the taking of your domain BECAUSE there is NO "administrative appeals court" in the current system. No cheap solution to the Elbonian Domain Dispute Panel's decision that your domain is the rightful property of . . . the son of the Crown Prince of Elbonia . . who really grooves on RockMusic.tld and has "inherrent rights" to the domain . . if he wants it.".

Remember: It's Elbonian rules, not U.S. or British rules of civil justice. It's a big world with lots of variations in the rules. Get ready.

OR GET IN TOUCH WITH YOUR CONGRESSMAN, 'cause I promise you that .COM will be in every Elbonian's cross-hairs. :P

commanderW




msg:4042517
 12:03 am on Dec 14, 2009 (gmt 0)

I am lost on this. I have looked at the entire UDP and the CAC paper. I don't see anything in the CAC but procedural gobbledygook. all I can think of is that, for American domain holders, it doesn't matter what a Czech court does or wants. The constitution specifically states that no foreign court has any jurisdiction whatsoever over Americans on American soil. Further, the UDP itself requires that the dispute be adjudicated thusly -

Mutual Jurisdiction means a court jurisdiction at the location of either (a) the principal office of the Registrar (provided the domain-name holder has submitted in its Registration Agreement to that jurisdiction for court adjudication of disputes concerning or arising from the use of the domain name) or (b) the domain-name holder's address as shown for the registration of the domain name in Registrar's Whois database at the time the complaint is submitted to the Provider.

I would appreciate it if anyone on this forum can explain this stuff clearly, and what and where the threat lies, because right now all I see is gobbledygook.

graeme_p




msg:4042625
 8:16 am on Dec 14, 2009 (gmt 0)

Is this a reason not to use foreign ccTLDs that are being marketed for global use - I mean the likes of .tv

aleksl




msg:4042746
 2:32 pm on Dec 14, 2009 (gmt 0)

graeme_p, yes

commanderW, here's an example.

A prince of Elbonia really likes webmasters of the world, so he trademarks WebmasterWorld.com in Elbonia. Then he sends a UDRP complaint in Elbonia. As of right now prince can choose A SINGLE PERSON PANEL. if you want "justice" the way ICANN understands it, you can pay the money and make them convert to a three-person panel (like this makes a difference). According to Elbonian rules, elbonian heirs always win. So they send a ruling to a local registrar like Godaddy, who WILL COMPLY and take your domain away.

Believe me when I say that this happens NOW.

wheel




msg:4042838
 4:28 pm on Dec 14, 2009 (gmt 0)

Believe me when I say that this happens NOW.

Believe? Why not some proof?

As for regional authorities, I don't think that's the answer for domain disputes - as is clearly the point being made by most people here. However, as I've noted, the immediate answer may not be that the regional American style of justice is the correct answer either (which is what seems to be being suggested).

Perhaps the answer is to get rid of .com/.net/.org and move completely to country specific TLD's. Then let the countries adjudicate however they want. .co.uk's can be handled in the UK. .us can be handled by the US. And then someone in Elbonia can't take over domain.us - though they could take over domain.elbonia.

Of course that's not going to happen. But I'm not sure there's a better solution. And in any event, I don't see this as being a 'real' issue. I don't think it's happening on even a small scale - if at all.

kaled




msg:4042882
 5:05 pm on Dec 14, 2009 (gmt 0)

Is this a reason not to use foreign ccTLDs that are being marketed for global use - I mean the likes of .tv

Not necessarily. If a country sells its domain names at a useful profit, they will not wish to jeopardise that source of income.

Whilst I usually consider myself to be fairly paranoid, I think I have been somewhat surpassed in this discussion. Whilst a registrar like Go Daddy might bow to a UDRP ruling in Elbonia, they would be under no compulsion to do so unless ICANN explicitly ordered them to do so under threat of having their license revoked.

Also, whilst I am not a lawyer, I think in most instances it is likely that an injunction could be obtained (in a court with jurisdiction over the registrar) negating any transfer order until after a full hearing. So using a registrar in ones home country may be advantageous.

Kaled.

Webwork




msg:4042891
 5:13 pm on Dec 14, 2009 (gmt 0)

Wheel, do you read DNW - Domain Name Wire? I don't get that impression because, if you did, you would be aware of some of the hair-brained decisions emerging of late, in somewhat increasing numbers. I'm averring to multiple decisions that ignore the fundamental rules, such as requiring the panel to assess 3 important facts relating to the registration of the domain.

And these decisions come from proceedings administered by the more reputable adjudicatory bodies.

Then we have ICANN's decision to entertain "expedited" domain panels, where notice can be delivered by email. Nothing quite so certain and comforting as effective notification of important legal proceedings . . by email.

If you have pay attention to the "domain space" you know about the games being played in the name of "protective registrations" made during the "sunrise period" of every new TLD. See these patterns you should know - to a certainty - that a) there's big money involved in the neverending domain land-grab business; b) that funding is being used to exploit every hole and opportunity in the system.

So, add to "the domain land-grab system" that new decision makers, one's who may not be accustomed to playing by certain generally accepted rules of fair process, and what will you get?

I'm not going to lose sleep, as I feel reasonably confident that, as a lawyer with ~30 years experience, I can hold my own if I have to file a lawsuit to defend against a spurious decision. But most folks would have to commit ~$10,000.+ before a competent, experienced lawyer committed him/herself to entering into litigation is U.S. District Court.

Guess what? What if you had to do that 2 or 3 times? A year?

Do you know that there has been more than 1 reported case of a (an alleged) trademark holder filing a dispute, to take a domain, more than once - going after the same domain?

If the proposals floating around take hold and become policy/practice, there is no doubt and no question in my mind that there will be an increase in spurious, ill-founded decisions whereby domain registrants will be forced to hire lawyers, at considerable expense, to defend their interests in developed websites and domains.

But, like most things in life - for example, driving a car - we mentally manage the risks, physically manage the risks, etc. Fortunately, with cars, the trend has been to make them safer, to postpone driving privileges, etc.

Unfortunately, for anyone with a website or a domain, recent "systemic adjudicatory design trends" indicate the bumpers are coming off.

Happy motoring.

For those concerned about safety: Call your Congressman.

timster




msg:4043086
 10:05 pm on Dec 14, 2009 (gmt 0)

For those concerned about safety: Call your Congressman.

What do you want me to call him? Seriously, if I called and tried to explain this to my good representative, he'd be confused and I'd be waving my arms around trying to get it straight in my head.

What exactly is the message you want to spread?

Webwork




msg:4043092
 10:13 pm on Dec 14, 2009 (gmt 0)

Probably need to target Senators on the Commerce Committee, as I believe that it's Commerce that oversees ICANN.

Message: Maybe let the ccTLDs run their own domain ~binding (subject to lawsuit filint) arbitration processes, but keep the original "Big 3" - .Com, .Net and .Org - under adjudicatory control of arbitration agencies that both adhere to higher standards of due process, judicial comity/conventions, and general principles of law AND pull their pool of arbitrators from individuals . . with experience with and a commitment to those higher standards.

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