2018-02-01 Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP WG

Notes/ Action Items

Action Items:

1. Staff to move the 4 bullet points/questions suggested by the Co-Chairs to Column 3 of Section M in Part 2 of the consolidated document;  
2. WG members to consider if additional edits to the Co-Chairs suggested 4 bullet points/questions are needed in view of discussion on the call of 1 Feb

Notes:

1. Co-Chairs' Statement on URS Review (page 9-10)

Overview

-- The Co-Chairs suggested questions / bullet points should be regarded as "addition" to the relevant Charter questions, instead of "substitutes", as there are overarching questions on page 9 too

Question 3: Have URS decisions been limited to cases meeting the “clear and convincing evidence” standard, and been properly explained? (Note: This will require a qualitative review of a statistically significant percentage of URS decisions.)

-- Some WG members have concerns over the notion of "qualitative review". There is some subjectivity to it. It is not the WG's role to determine the decisions that have already been made. Qualitative review of decisions is not fair, especailly when based on insufficient input. Strongly object this approach. The WG is not an independent legislative body and members come with their own views. The WG has no qualification to do the type of qualitative review. The WG can discuss what does "clear and convincing evidence" mean.

-- Instead, some alternative questions can be asked:

• What instructions have the URS providers given to the panelists?
• What did the URS providers advise the panelists?
• Does the URS providers have minimal standards for panelists for decision making?
• Have the minimal standards been met?
• What are the URS providers' procedures? Have the URS providers done their work?
• Susan Payne's suggested question: How have the URS providers ensured that the "clear and convincing evidence" standard has been applied?
• How do the URS providers police the existing rules for the panelists?
  

-- Some WG members argued that an analogy of the WG's role is more like a legislative review panel, reviewing what the rules should be. The community made the rules, and the WG should review how they are set out. A way around it is to identify decisions that may be 'troublesome' and to look at what is actually happening. Some decisions were made without clear evidence or evidence at all. The idea of completely turning off judgement is not feasible.

-- Some URS decisions warrant "qualitative review":

• Since there are minimal requirements for URS decisions, we want to see whether decisions have meet the minimal requirements (e.g., there are URS decisions that do not clearly state what the trademark issue is);
• Some domains that are dark, not used, and not used in bad faith were suspended.

-- It is not unreasonable to review some of the decisions of the panelists. George Kirikos posted an example:

• Expedia.Reviews, which seems questionable (in George Kirikos's opinion): http://www.adrforum.com/domaindecisions/1611443D.htm. Domain resolved to registrar's holding page, and panelist claimed "Finally, the function of the Domain does not fit into any accepted definition of “fair use” such as comment, criticism, etc.". False, given "reviews" is by definition comment, criticism.
  

-- The WG has general agreement on the objectivity of URS review. Unlikely the other RPMs, URS is the only RPM in Phase 1 going to be affected by the overarching question and to be determined whether it should be a consensus policy. That would argue for a more rigorous review.

-- The WG has general agreement to amend/revise Question 3.

-- Perhaps the WG could recommend that the panelists should issue URS decisions with rationale / opinion, as the current practice does not provide that.

-- The WG should consider reorganizing all the questions, including the 5 suggested high-level questions on page 1, 4 general charter questions on page 9, and 4 co-chairs' questions on page 10.

2. Brian Beckham's comments

- Adopted suggestion in paragraph 1

3. Susan Payne's comments

- Adopted suggestion in paragraph 2

- Adopted suggestion in paragraph 3; WG to consider if additional edits to the Co-Chairs' suggested questions (especially question 3) are needed in view of discussion on the call of 1 Feb

4. Preview of agenda of 7 Feb

- Review of the URS template by Berry Cobb, including quick overview of the cases and elements to review