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

[Dan Steinberg <synthesis@videotron.ca>]

John,

You make compelling arguments on this one.  Are you ready to formulate 
it in the form of a draft change to the UDRP?


John Berryhill Ph.D. J.D. wrote:

>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
>
>
>
>  
>

-- 
Dan Steinberg

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