Re: [nc-udrp] Not Forum Rules, but the UDRP

["John Berryhill Ph.D. J.D." <john@johnberryhill.com>]

From: "Michael Froomkin - U.Miami School of Law" <froomkin@law.miami.edu>
>
> Respondents should have longer to pay, since the complainant chooses the
> timing of the proceeding and has as long as he wishes to amass the funds.
>
> The current rule actually has the equities backwards.

That's obvious.  But I believe it is first important for us to understand the
reasons *for* the Rule being the way it is, before criticizing it.

It actually gets a little weirder than this.  You see, most of the
publications on the UDRP are based on what eventually is posted as a
decision, not on some of the general strangeness of how the proceeding gets
to a decision, and they don't touch on some of the everyday nonsense one
encounters with the Policy.

Even if the complainant didn't get enough money together, or didn't know they
needed to, the providers will quietly dismiss the complaint without ever
telling the respondent that one was filed.   In certain situations, as
happened in a case last week, the NAF will send a notice of dismissal to the
complainant and the registrar, and actually *omit* the respondent from the
distribution list.  It's tough enough that complainants no longer send
service copies of papers to the respondent, but when the providers get in on
the act, things get even tougher.

In that case, the domain registrant only became aware of the filing and
withdrawal upon receiving an inquiry from a somewhat confused registrar.
According to the NAF, that circumstances of that case were "rare" and it was
never "officially commenced".  One might wonder how a non-commenced
proceeding earns, or would even need, an order withdrawing the case, but,
hey, it's UDRP-land.

Here's a goofy one that drives complainants batty.  Okay, so we know the NAF
is objective and literal about the rules, right?  But perhaps the only little
"gotcha" you can use as a respondent is that the NAF has an unwritten rule
that if the 20 day response deadline falls on a Saturday or Sunday, then they
will extend the response time to the following Monday.  No rule... they just
do it that way.

Take a look at this guy - he was the complainant in a UDRP when he found out
about this particular NAF quirk, and was asked to pony up his share of the
three-member panel fee:

http://forum.icann.org/cgi-bin/rpgmessage.cgi?offtopic;3D4AD72100000937

You'll note that he's off complaining in the ICANN off-topic public comment
forum.  Cute, huh?  As if.  Of course, on top of everything else, one has to
bear in mind that a "day" under the UDRP is measured differently by the NAF
and by WIPO.  At the NAF, days begin and end at midnight in Minneapolis.  At
WIPO, any "day" is measured with respect to the time zone of the party facing
the deadline.  WIPO has never clarified how to count days where a party and
the party's counsel are located in different time zones, but they aren't as
generally obsessive about calendars and clocks, since they do not have
supplemental fees that depend on them.

The only way attorneys have learned to deal with the unwritten rules followed
by the different providers is by sharing what they learn whenever they
encounter one.  Some of us even compile them, since you won't find them on
any website.  Complaints, you see, are provided with a grace period for
paying fees, and are provided with time to correct deficiencies.  The NAF
provides several "without prejudice" complaint withdrawal situations if the
complainant doesn't get it corrected after a notice of deficiency.  For
complaints, the rule is "If at first you don't succeed, try again."
Responses, on the other hand, have to be bang on correct, complete, and paid
for by midnight in Minnesota.  No excuses, and no second chances.

There will always be those who confuse fairness and inflexibility.  To avoid
such confusion, the drafters of the US Federal Rules of Civil Procedure, for
example, provided an interpretative rule before all of the other rules, i.e.
that the rules will be interpreted in such a way as to do substantial
justice.  Some people have this notion that a rule can be applied
"objectively", as if the application of a rule did not require a mental act
of interpretation, no matter how small.  Such people are deceiving
themselves, since there is always an irreducible quantum of subjectivity in
the application of any rule.  That space is where people have to make up
their minds to do what is "right" in a broader sense.  Yeah, I know, call me
old-fashioned.

But back to the point, is there anyone among the assembled expertise of the
Task Force who can think of a reason why the UDRP provides a ten day fee
payment period to complainants, but not to respondents?  Any reason at all.

John