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Re: [alac] UDRP issue prioritization -- no clear message?

Thanks Thomas,
I'd agree that UDRP is an issue on which the Internet-using public, and this committee, have a variety of opinions. At the same time, I'd say that the list of issues we were given to prioritize is particularly unhelpful in reaching any consensus. The issues differed widely in scope, some reaching to the core of the policy (definition of "confusing similarity" and holding vs. "use") or its operation (precedential value), others having a more limited nature (should decisions be put in a central repository, should complaints and responses be published, should providers be accredited).
It appears that those who think the entire UDRP is broken in a way that harms individual registrants favor broad changes to the substance of the procedure to balance the power of challenger and respondent and to provide better notice to registrants of their rights, while those who think the UDRP as-is does a good job of protecting the public against cybersquatting confusion favor study of more minimal changes to regularize its procedures.
Personally, I think the UDRP is a mess, unpredictable and often at odds with legal principles and free speech concerns. I don't want to be rearranging deck chairs on the Titanic, engaging in a "study" that validates a fundamentally broken process by adding a procedural nicety or two.
That said, I think Thomas's statement below does a good job reporting our committee discussion. Since ALAC isn't a "constituency," it probably wouldn't have any effect if we did submit a specific list, anyhow. 

I'd leave out the Verisign mention.
--Wendy


At 0:59 +0200 9/23/03, Thomas Roessler wrote:

First, apologies for coming up with this so lately; we only have
about a day left for coming to closure on this.

Reviewing the issues that were mentioned on the list, and the little
discussion that has occured, I'm under the impression that we don't
actually have a clear set of issues to push on the GNSO council.

Only six committee members contributed to the discussion.  Four
issues were mentioned by four committee members each, and another
five issues were mentioned by three committee members each.

Opposition came from Hong against raising any substantial issues
(two of which -- 13, 18 -- received four "votes"), and from myself
regarding the centralized database -- 1 --, on the basis that this
is not a policy question; 1 also received four "votes".

I do not believe that there is, at this point, a strong enough
collective view on this committee on what specific issues should be
raised on the council.

For this reason, I'd probably refrain from submitting a list of five
to the council, and would instead send a more general note, roughly
like this one:





From: roessler
To: council
Subject: ALAC remarks on UDRP prioritization

ALAC members have had some discussion on the staff manager's issues
report on UDRP review.  There is no clear consensus on the ALAC
about what issues would be our "top five."

Committee members were concerned about questions of transparency and
accountability regarding UDRP decisions (issues 1, 2, 4, 5 are
relevant to this); about internal appelate review and precedential
effect (10, 19); and in particular about affirmative defenses (18),
the interpretation of "holding vs. use" (15), and the interpretation
of "confusing similarity" (13).

It was observed that a centralized database of UDRP decisions (issue
1) would have most value if there is enforceable precedential value
to earlier decisions.  Issues 4 and 5 were considered to be so
closely related that they should probably be dealt with together.


[ We also note that the sitefinder service that has been deployed by
Verisign is not just breaking design assumptions made by technology,
but also affects assumptions made in the UDRP. Depending on how
things further evolve in this question, issue 20 (cancellation as a
remedy under the UDRP) may become an urgent matter for the GNSO to
deal with. ]

<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<

Thoughts?  (Not sure about the sitefinder reference, since our (and
probably everyone's) preferred outcome is clearly that sitefinder be
shut down, not that the UDRP adapt to it.  Should I keep it or
remove it?)

Regards,
--
Thomas Roessler  <roessler@xxxxxxxxxxxxxxxxxx>
At-Large Advisory Committee: http://alac.info/



--
--
Wendy Seltzer -- wendy@xxxxxxxxxxx || wendy@xxxxxxx
Staff Attorney, Electronic Frontier Foundation
Fellow, Berkman Center for Internet & Society at Harvard Law School
http://cyber.law.harvard.edu/seltzer.html