Subject: GA-DIGEST V1 #652
From: [email-masked] (GA-DIGEST)
To: [email-masked]

GA-DIGEST          Wednesday, August 8 2001          Volume 01 : Number 652

----------------------------------------------------------------------

Date: Wed, 08 Aug 2001 05:01:08 +0200
From: Jefsey Morfin <[email-masked]>
Subject: [ga] Re: Questions for the Candidates

Thank you Danny,
I thank you not to ask all the good questions I rose, so I may betetr detail.

On 02:54 08/08/01, [email-masked] said:
>Dear Board candidates,
>The General Assembly has thus far raised the following questions:

>1.  Will you actively support Karl Auerbach's motion on the creation of an
>Individuals' Constituency in the DNSO?

I sent a few hours ago a mail to propose considering the Internet User 
Constituency constitution process as per the bylaws.  I supprot the 
creation of two Registrant Constituency (bulk and individuals as heir 
registration procedures and problems differs). I call for a DNS 
Developpement Constitency to study and specify the DNS évolution and to 
analyse and document their impact on the market.

>2.  What are the strong and weak points of the DNSO structure as it is and
>how would you set about improving it?

The DNSO is weak from the Singapore compromise (Dennis Jennings 
proposition) to include the @large withing a technical SO. The WG-R had 
identified this. ALSC is identifiying it too.

@large oriented constituencies should move to the @large organization. The 
DNSO should include the gTLDs, the ccTLDs, the STLDs, the Registrars, the 
Registrants, the DNSDeveloppers and a DNS oriented commitee from the 
Internet User Constituency.

>3.  What is your view on ICANN At Large participation -- do you support an
>election of the full number of At Large directors?

IMHO the current repartition is aceptable: 5 geographical representatives 
elected by the @large Members and 4 representing professionnal concerns. I 
hate that 4 are BoDsquatters and 5 are not supposed to stay until replaced.

I think the number of @large Constituencies should enlarge to include: 
SMEs, content providers, Telcos, etc... I am interested by the scheme where 
all the Directors are elected by the @large. The nomination mechanism 
should obvsiously take care of the necessary divesity.

We have an @large Study Committtee. We wanted the WG-R to be its counter 
part. Now the WG-R  starts anew. Let them work. I will support a solution 
not imposed on us which will clearly make a difference between the 
"netwide" consensus based advices of the DNSO on DNS issues and the 
stakeholders voted motions of the @large on the same matter. One says what 
we can do, the other say what we would like to do.

>4.  To what extent would you seek to ensure that the "open," "bottom-up" mode
>of operation of ICANN, in which the participation of the General Assembly in
>forming recommendations and suggestions to the Board of Directors is a part,
>and which mode is set out in the Articles that govern ICANN and in the
>agreement with the USG, would be honored and implemented?

The subject is complex because it calls for a complete analysis of the new 
social behaviors of which the Internet are both a mirror and an agent. I am 
sorry but I need to explain this first.

"bottom-up/top-down" schemes are XIXth century heritage based upon the 
hierarchical social dialog. For many decades a new form of relations I name 
"me/we" is emerging and based upon a relational polylog. You cannot deal 
with something like the Internet without being influenced by it, so the 
"me/we" model is more present to us than to others but it is all over the 
world. Our problem is that through e-mail we mostly live in a me/we 
multi-dimension world while many still want to use two dimensions concepts.

Governance is me/we. It is not a "World Governement" but one the relations 
between the individual and his missions, interests, etc.. and his multiple 
communities.
Global is all what is the three first parts of the "mine/me/we/alien" basic 
sequence.
Politically correct is me/we (not top-down or bottom-up: it would be 
oppression).
Consensus is a me/we word reflecting the correct thinking of the community.
Deciding is what makes you, knowing you is what makes your community (think 
about "authoritaive" in the DNS and you better understand many things)

No one has yet analysed governance mecanisms (Europe is just starting an 
international effort on that). I am pragamatic. So I would go "Estonian". 
This people have developped an online information discussion and decision 
system for their Governement meeting. They open it progessively to 
every  citizen - in real time. And they will use it in cities, 
administrations, etc...

We see that Staff and BoD do not comply with the bylaws. They oftern change 
the rules as it pleases them. Their decsion process is not transparent. Is 
that they want to cheat? Are we able to force them?
Most of the time of this GA is wasted in rules discussion. Most of the 
people do not understand half what they discuss about. No one remember a 
cute suggestion made 10 days before. No motion is voted, no consensus is 
uncovered. Is that serious? Does that means that we are not serious?

Response is "no" to all these questions. It means we need another system of 
relations to decide, debate and educate. Adapted to our 'me/we system based 
on our me/we e-mail practice.Vint is on this GA and any one can copy 
everyone. What we need is to understand how we realy work, tanslate it into 
acceptable software specifications and develop it. This is our priority.

No one is going to tell a software system not to be transparent, to bypass 
a rule or to be impressed by ad hominem disputes.

Jefsey

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------------------------------

Date: Tue, 7 Aug 2001 23:33:42 -0400
From: [email-masked] (admin)
Subject: RE: [ga] Re: Reconsideration

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Re: ReconsiderationYou are lying.  It is unbelievable that you are blatantly
lying like this on this list.

I submitted 3 reconsiderations and 2 were ignored.  Furthermore, I resent
these several times to Mr. McLauglin and Mr. Touton as well as several other
people.  At that point I gave up submitting reconsideration requests because
they were ignored and because the ICANN responses to other reconsideration
requests were simply ridiculous and often completely false.

As for the submission I did submit, the ICANN "official" stance on the
trailing hyphen domains directly contradicts what Louis Touton told me on
the phone and what Mr. Roberts stated in public interviews which were taped
an broadcast at InternetNews.com.  Roberts said publicly one of the main
reasons was because they received Intellectual Property complaints.  Louis
Touton also said he received a complaint directly from AOL.  I had
previously been involved with privacy lawsuits against AOL.  The final
reason ICANN gave was that it broke some programs (like FTP) just like the
long domains did when they came out.  Also, I was supposed to be given the
opportunity to address the board before they revoked the domains.  I was
never given that opportunity and McLaughlin pointed me to the board
"decision" several weeks after it happened.

The additional reconsideration requests I filed involved issues surrounding
the UDRP.  One reconsideration was filed on May 20, 2000 to request was that
ICANN staff failed to ensure that the arbitrators were properly trained.
Specifically, I requested ICANN staff to ensure that each arbitrator was
aware of the ICANN staff report #2 for the UDRP.  This second staff report
contains key information about the scope of the UDRP and it was clear from
many early decisions that many arbitrators were not aware of this document.

Another reconsideration request was filed on May 31, 2000 in response to the
answer ICANN made to a reconsideration request made by someone else.  This
involved the posting of information concerning which UDRP transfer decisions
were put "on hold" as a result of the respondent filing a law suit within
the 10 day period as set forth in the UDRP.  The ICANN reconsideration
committee made false statements in their initial response to the initial
complainant.

These 2 reconsideration requests were ignored.  Since the reconsideration
committee was making false statements in their responses, and my requests
were being ignored, there is no point in filing any more.

Again, you are a blatant liar as well as a fraud.  Let me know when you are
in Washington, DC so you can apologize to me in person.

Russ Smith

============

Below is the May 20, 2000 reconsideration request.  This involved one of the
arbitrators who posted to the list of the International Trademark
Association (INTA.org).  The arbitrator's posting made it clear that he was
not aware of the issues contained in the ICANN second staff report for the
UDRP and, as a result, faulty decisions were made.  Below is the
reconsideration request along with the postings from the INTA list:

- -----Original Message-----

From: Russ Smith [mailto:[email-masked]]

Sent: Saturday, May 20, 2000 12:58 AM

To: [email-masked]

Cc: [email-masked]; Francis Gurry; [email-masked]; (

Arbiter.Mail ); Arif Ali; Deborah Enix; Erik Wilbers; Patricia Simao;

[email-masked]; [email-masked]; Schaber, Michelle; Bowser, Walt

[[email-masked]]; [email-masked]

Subject: Reconsideration request-UDRP related

I am requesting reconsideration on the following ICANN activity:

The failure of ICANN to properly publicize the stipulation in the ICANN
staff report #2 concerning the Uniform Domain-Name Dispute Resolution Policy
(UDRP). The report states in part:

"In view of the comments, one detail of the policy's language should be
emphasized. Several commentators indicated that the concept of "tarnishment"
in paragraph 4(c)(iii) might be misunderstood by those not familiar with
United States law or might otherwise be applied inappropriately to
noncommercial uses of parody names and the like. Staff is not convinced this
is the case, but in any event wishes to point out that "tarnishment" in
paragraph 4(c)(iii) is limited to acts done with intent to commercially
gain. Staff intends to take steps to publicize this point."

- -Russ Smith, PO Box 44232, Washington, DC 20026-4232

- -I am requesting ICANN take 2 actions: (1) immediately notify all persons
acting as UDRP arbitrators of this issue and (2) reprocess all domain
disputes where First Amendment and/or tarnishment issues were raised during
the proceeding.

- -I am affected by this matter because I operate domain names which could be
subject to a similar dispute. Dispute decisions are being used as precedents
for later disputes. therefore, such decisions may affect domains which I
own.

- -This situation should be corrected because non-uniform decisions in the
UDRP contribute to a destabilization of the Internet.

The following documentation is being used to support my request:

(1) A posting by attorney Robert A Fashler on the public INTA mailing list.
Mr. Fashler was an arbiter for case
http://arbiter.wipo.int/domains/decisions/html/d2000-0071.html which
involved a First Amendment issue. Mr. Fashler's posting clearly indicates he
was not aware of the ICANN provision concerning tarnishment.

===

- -----Original Message-----

From: [email-masked] [mailto:[email-masked]] On

Behalf Of [email-masked]

Sent: Thursday, May 18, 2000 11:05 AM

Subject: (INTA)First Amendment and the UDRP

1) Does anyone believe a case can be made that there's a

difference between a domain name in use for protected

(1st Amendment) speech, and a domain name reserved,

but not used, for that potential purpose?

This question raises the relationship between the contractual

regime embodied in the UDRP and the local law of any

jurisdiction. Some of us have exchanged views on this

before. As a non-US lawyers I wonder about the extent to

which the First Amendment has any significant application

to the UDRP. A very respected US professor and UDRP

panellist has suggested that it does indeed apply as it may

provide the basis for rights or legitimate interests in

respect of a domain name. However, when I read

Paragraph 4 (a) (ii) of the UDRP, it appears to be

directed to a proprietary right or interest in the domain

name, which, to my way of thinking is quite different

than a right to communicate. I suspect that many other

non-US lawyers would see it that way too. If that is

the correct interpretation of the wording, it would

appear that domain name owners have contracted out

of any right of free speech to the extent that it must be

expressed in a domain name that combines a trademark

with a word that tarnishes it. Does US law make it

impossible to contract out of First Amendment rights?

Is there a conflict between the UDRP and US law?

+++++++++++++++++++++++++++++++

Robert A Fashler

Davis & Company (Vancouver)

T +1.604.643.2975

F +1.604.687.1612

C +1.604.716.8204

E [email-masked]

+++++++++++++++++++++++++++++++

===

(2) NAF arbitration http://www.arbforum.com/domains/decisions/94306.htm. In
this decision the Arbiter James A. Carmody was clearly unaware of the
tarnishement issues (as well as several other issues surrounding the UDRP).

"Both Complainant and Respondent have submitted lengthy and well-written
briefs and many exhibits to support issues and theories which are more
appropriately dealt with in contemporaneous litigation pending between the
parties. First and Eleventh Amendment Constitutional issues are not within
the scope of this arbitration."

...

"Respondent’s web page at http://www.lobofootball.com/maverick/info.html,
describes itself as "commercial enterprise formed to support UNM Lobo
Football fans." Complainant has its own websites, public relations and
athletic department spokespersons and is essentially a competitor of
Respondent with regard to sports information and commentary. Respondent has
used its domain names and related websites to disrupt the business of
Complainant. Whether or not Respondent established and maintained the sites
for personal commercial gain, I find that these sites have been maintained
in bad faith to disrupt the legitimate commercial activity of the
Complainant."

Russ Smith

End of May 20, 2000 reconsideration request

===

Below is the May 31 reconsideration request concerning the failure of ICANN
to post the transfer decisions which were stopped as a result of law suit.
however, the main point of the request was a complaint that the
reconsideration committee made false statements in reponding to
reconsideration request #5

- -----Original Message-----

From: Russ Smith [mailto:[email-masked]]

Sent: Wednesday, May 31, 2000 5:17 PM

To: [email-masked]

Cc: [email-masked]; [email-masked]; [email-masked];

[email-masked]; [email-masked]; [email-masked]; John Berryhill

Ph.D. J.D.; [email-masked]; Francis Gurry; [email-masked]; (

Arbiter.Mail ); Arif Ali; Deborah Enix; Erik Wilbers; Patricia Simao;

[email-masked]; [email-masked]; Schaber, Michelle; Bowser, Walt

[[email-masked]]; [email-masked]

Subject: reconsideration request

I am filing a reconsideration request concerning the misleading response
provided by the ICANN's response to RR 00-5. My standing in this matter is
that I own a number of domain names which has generated a number of
frivolous complaints. By posting incomplete UDRP decisions ICANN is
encouraging more frivolous complaints.

The misleading portion of ICANN's response is shown below:

"The ICANN tables do not include notations relating to subsequent
litigation, because the ICANN staff is simply too small and too
overstretched to monitor and verify the hundreds of legal disputes that will
surely ensue. The Reconsideration Committee finds the ICANN staff indices to
be a valuable service for the benefit of interested and affected parties,
and believes that ICANN should continue to provide the listed information in
full."

This is misleading and/or false because:

(1) the statements claims that the staff would have to "monitor and verify
the hundreds of legal disputes that will surely ensue." There is no basis in
fact to this statement. Paragraph 4(k) of the UDRP states:

"...We will then implement the decision unless we have received from you
during that ten (10) business day period official documentation (such as a
copy of a complaint, file-stamped by the clerk of the court) that you have
commenced a lawsuit against the complainant in a jurisdiction to which the
complainant has submitted under Paragraph 3(b)(xiii) of the Rules of
Procedure. ... If we receive such documentation within the ten (10) business
day period, we will not implement the Administrative Panel's decision, and
we will take no further action, until we receive (i) evidence satisfactory
to us of a resolution between the parties; (ii) evidence satisfactory to us
that your lawsuit has been dismissed or withdrawn; or (iii) a copy of an
order from such court dismissing your lawsuit or ordering that you do not
have the right to continue to use your domain name."

This rule describes a very specific situation and a 10-day time limit to
file a "stay" of the transfer order. The ICANN staff (or the UDRP providers)
would only need to monitor whether the lawsuit paperwork was filed within 10
days in order to halt the transfer. There is no rational basis to the claim
that the staff would have to "monitor and verify the hundreds of legal
disputes that will surely ensue."

Furthermore, by failing to post this information, the full result of the
UDRP proceeding is not being made available to the public. It is well known
the UDRP decisions have not been consistent. by failing to post complete
information ICANN is misleading the public as to the true outcome on the
UDRP procedure. In other words, the public is not seeing that numerous
lawsuits are being generated as a result of poor or sketchy decisions being
rendered as a result of the UDRP process.

Therefore, I request that all providers be required to post the complete
decisions, which includes whether a transfer was not completed because
litigation was filed to stop the transfer under rule 4(k) of the UDRP. I
understand poor UDRP decision have resulted in a series of lawsuits which
may not have occurred if the decisions were rendered in accordance with the
UDRP and/or if a reasonable decision was published that explained the
reasoning behind the decision.

Russ Smith

http://consumer.net

Wnd of May 31, 2000 reconsideration request.

=====

  -----Original Message-----
  From: [email-masked] [mailto:[email-masked]]On Behalf Of M. Stuart
Lynn
  Sent: Tuesday, August 07, 2001 10:16 PM
  To: [email-masked]
  Cc: [email-masked]
  Subject: [ga] Re: Reconsideration

  Mr. Smith has indeed sought reconsideration on just one occasion, and his
complaint was carefully considered by the Reconsideration Committee and the
ICANN Board.  The committee's recommendation can be viewed at
<http://www.icann.org/committees/reconsideration/rc00-1.htm>.  I think a
review of that document.  A response to Mr. Smith's attempt to reargue the
matter appears at
<http://www.icann.org/committees/reconsideration/committee-response-24apr00.
htm>.  A fair review of those documents shows that Mr. Smith's allegation is
not supported by the facts.

  Stuart

  At 7:36 PM -0400 8/7/01, [email-masked] wrote:
    Dear Mr. Lynn,

    A serious charge has been posted to the General Assembly list
(reproduced
    below) which should not go unanswered:
    http://www.dnso.org/clubpublic/ga/Arc08/msg00308.html

    Please investigate this complaint.  We need to be able to have faith in
the
    reconsideration system, or the credibility that ICANN seeks to achieve
may
    readily be lost.   We appreciate the attention that you will devote to
this
    matter.

    Thank you,
    Danny Younger
    Chair, GA

    >May I remind you that you have 30 days to make a reconsideration
request>
    after you experimented the problem. You will find the necessary
information>
    at the following page:>http://www.icann.org/general/reconsideration.htm

    I have filed these in the past.  In some cases the answers were not
    responsive to the complaints.  In other cases ICANN refused to answer or
post
    the submission.  I resubmitted some but they refuse to acknowledge or
answer
    the submission.  The reconsideration system is a complete sham.

    Russ Smith

  --

  __________________
  Stuart Lynn
  President and CEO
  ICANN
  4676 Admiralty Way, Suite 330
  Marina del Rey, CA 90292
  Tel: 310-823-9358
  Fax: 310-823-8649
  Email: [email-masked]

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<DIV><FONT color=3D#0000ff face=3DArial size=3D2><SPAN =
class=3D689295802-08082001>You=20
are lying.&nbsp; It is unbelievable that you are blatantly lying like =
this on=20
this list.</SPAN></FONT></DIV>
<DIV><FONT color=3D#0000ff face=3DArial size=3D2><SPAN=20
class=3D689295802-08082001></SPAN></FONT>&nbsp;</DIV>
<DIV><FONT color=3D#0000ff face=3DArial size=3D2><SPAN =
class=3D689295802-08082001>I=20
submitted 3 reconsiderations and 2 were ignored.&nbsp; Furthermore, I =
resent=20
these several times to Mr. McLauglin and Mr. Touton as well as several =
other=20
people.&nbsp; At that point I gave up submitting reconsideration =
requests=20
because they were ignored and because the ICANN responses to other=20
reconsideration requests were simply ridiculous and often completely=20
false.</SPAN></FONT></DIV>
<DIV><FONT color=3D#0000ff face=3DArial size=3D2><SPAN=20
class=3D689295802-08082001></SPAN></FONT>&nbsp;</DIV>
<DIV><FONT color=3D#0000ff face=3DArial size=3D2><SPAN =
class=3D689295802-08082001>As for=20
the submission I did submit, the ICANN "official" stance on the trailing =
hyphen=20
domains directly contradicts what Louis Touton told me on the phone and =
what Mr.=20
Roberts stated in public interviews which were taped an broadcast at=20
InternetNews.com.&nbsp; Roberts said publicly one of the main reasons =
was=20
because they received Intellectual Property complaints.&nbsp; Louis =
Touton also=20
said he received a complaint directly from AOL.&nbsp; I had previously =
been=20
involved with privacy lawsuits against AOL.&nbsp; The final reason ICANN =
gave=20
was that it broke some programs (like FTP) just like the long domains =
did when=20
they came out.&nbsp; Also, I was supposed to be given the opportunity to =
address=20
the board before they revoked the domains.&nbsp; I was never given that=20
opportunity and McLaughlin pointed me to the board "decision" several =
weeks=20
after it happened.</SPAN></FONT></DIV>
<DIV><FONT color=3D#0000ff face=3DArial size=3D2><SPAN=20
class=3D689295802-08082001></SPAN></FONT>&nbsp;</DIV>
<DIV><FONT color=3D#0000ff face=3DArial size=3D2><SPAN =
class=3D689295802-08082001>The=20
additional reconsideration requests I filed involved&nbsp;issues =
surrounding the=20
UDRP.&nbsp;&nbsp;One</SPAN></FONT><FONT color=3D#0000ff face=3DArial =
size=3D2><SPAN=20
class=3D689295802-08082001> reconsideration was filed on May 20, 2000 to =
request=20
was that ICANN staff failed to ensure that the arbitrators were properly =

trained.&nbsp; Specifically, I requested ICANN staff to ensure that each =

arbitrator was aware of the ICANN staff report #2 for the UDRP.&nbsp; =
This=20
second staff report contains key information about the scope of the UDRP =
and it=20
was clear from many early decisions that many arbitrators&nbsp;were not =
aware of=20
this document.</SPAN></FONT></DIV>
<DIV><FONT color=3D#0000ff face=3DArial size=3D2><SPAN=20
class=3D689295802-08082001></SPAN></FONT>&nbsp;</DIV>
<DIV><FONT color=3D#0000ff face=3DArial size=3D2><SPAN=20
class=3D689295802-08082001>Another reconsideration request&nbsp;was =
filed on May=20
31, 2000 in response to the answer ICANN made to a reconsideration =
request made=20
by someone else.&nbsp; This involved the posting of information=20
concerning&nbsp;which UDRP&nbsp;transfer decisions were put&nbsp;"on =
hold" as a=20
result of the respondent filing a law suit within the 10 day period as =
set forth=20
in the UDRP.&nbsp; The ICANN reconsideration committee made false =
statements in=20
their initial response to the initial complainant.</SPAN></FONT></DIV>
<DIV><FONT color=3D#0000ff face=3DArial size=3D2><SPAN=20
class=3D689295802-08082001></SPAN></FONT>&nbsp;</DIV>
<DIV><FONT color=3D#0000ff face=3DArial size=3D2><SPAN =
class=3D689295802-08082001>These=20
2 reconsideration requests were ignored.&nbsp; Since the reconsideration =

committee was making false&nbsp;statements in their responses, and my =
requests=20
were being ignored, there is no point in filing any=20
more.&nbsp;&nbsp;</SPAN></FONT></DIV>
<DIV><FONT color=3D#0000ff face=3DArial size=3D2><SPAN=20
class=3D689295802-08082001></SPAN></FONT>&nbsp;</DIV>
<DIV><FONT color=3D#0000ff face=3DArial size=3D2><SPAN =
class=3D689295802-08082001>Again,=20
you are a blatant liar as well as a fraud.&nbsp; Let me know when you =
are in=20
Washington, DC so you can apologize to me in person.</SPAN></FONT></DIV>
<DIV><FONT color=3D#0000ff face=3DArial size=3D2><SPAN=20
class=3D689295802-08082001></SPAN></FONT>&nbsp;</DIV>
<DIV><FONT color=3D#0000ff face=3DArial size=3D2><SPAN =
class=3D689295802-08082001>Russ=20
Smith</SPAN></FONT></DIV>
<DIV><FONT color=3D#0000ff face=3DArial size=3D2><SPAN=20
class=3D689295802-08082001></SPAN></FONT>&nbsp;</DIV>
<DIV><FONT color=3D#0000ff face=3DArial size=3D2><SPAN=20
class=3D689295802-08082001></SPAN></FONT>&nbsp;</DIV>
<DIV><SPAN class=3D689295802-08082001>
<P><FONT color=3D#0000ff face=3DArial size=3D2><SPAN=20
class=3D689295802-08082001>=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D</SPAN></F=
ONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2><SPAN=20
class=3D689295802-08082001></SPAN></FONT>&nbsp;</P>
<P><FONT color=3D#0000ff face=3DArial size=3D2><SPAN =
class=3D689295802-08082001>Below is=20
the May 20, 2000 reconsideration request.&nbsp; This involved one of the =

arbitrators who posted to the list of the International Trademark =
Association=20
(INTA.org).&nbsp; The arbitrator's posting made it clear that he was not =
aware=20
of the issues contained in the ICANN second staff report for the UDRP =
and, as a=20
result, faulty decisions were made.&nbsp; Below is the reconsideration =
request=20
along with the postings from the INTA list:&nbsp;&nbsp;&nbsp; =
</SPAN></FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>-----Original =
Message-----</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>From: Russ Smith=20
[mailto:[email-masked]] </FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>Sent: Saturday, May 20, =
2000 12:58=20
AM</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>To: =
[email-masked]</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>Cc: =
[email-masked]; Francis=20
Gurry; [email-masked]; (</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>Arbiter.Mail ); Arif Ali; =
Deborah Enix;=20
Erik Wilbers; Patricia Simao;</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>[email-masked];=20
[email-masked]; Schaber, Michelle; Bowser, Walt</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>[[email-masked]];=20
[email-masked]</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>Subject: Reconsideration =
request-UDRP=20
related</FONT></P>
<P>&nbsp;</P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>I am requesting =
reconsideration on the=20
following ICANN activity:</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>The failure of ICANN to =
properly=20
publicize the stipulation in the ICANN staff report #2 concerning the =
Uniform=20
Domain-Name Dispute Resolution Policy (UDRP). The report states in=20
part:</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>"In view of the comments, =
one detail of=20
the policy's language should be emphasized. Several commentators =
indicated that=20
the concept of "tarnishment" in paragraph 4(c)(iii) might be =
misunderstood by=20
those not familiar with United States law or might otherwise be applied=20
inappropriately to noncommercial uses of parody names and the like. =
Staff is not=20
convinced this is the case, but in any event wishes to point out that=20
"tarnishment" in paragraph 4(c)(iii) is limited to acts done with intent =
to=20
commercially gain. Staff intends to take steps to publicize this=20
point."</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>-Russ Smith, PO Box =
44232, Washington,=20
DC 20026-4232</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>-I am requesting ICANN =
take 2 actions:=20
(1) immediately notify all persons acting as UDRP arbitrators of this =
issue and=20
(2) reprocess all domain disputes where First Amendment and/or =
tarnishment=20
issues were raised during the proceeding.</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>-I am affected by this =
matter because I=20
operate domain names which could be subject to a similar dispute. =
Dispute=20
decisions are being used as precedents for later disputes. therefore, =
such=20
decisions may affect domains which I own.</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>-This situation should be =
corrected=20
because non-uniform decisions in the UDRP contribute to a =
destabilization of the=20
Internet.</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>The following =
documentation is being=20
used to support my request:</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>(1) A posting by attorney =
Robert A=20
Fashler on the public INTA mailing list. Mr. Fashler was an arbiter for =
case=20
http://arbiter.wipo.int/domains/decisions/html/d2000-0071.html which =
involved a=20
First Amendment issue. Mr. Fashler's posting clearly indicates he was =
not aware=20
of the ICANN provision concerning tarnishment. </FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>=3D=3D=3D</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>-----Original =
Message-----</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>From: =
[email-masked]=20
[mailto:[email-masked]] On</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>Behalf Of =
[email-masked]</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>Sent: Thursday, May 18, =
2000 11:05=20
AM</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>Subject: (INTA)First =
Amendment and the=20
UDRP</FONT></P>
<P>&nbsp;</P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>1) Does anyone believe a =
case can be=20
made that there's a</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>difference between a =
domain name in use=20
for protected</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>(1st Amendment) speech, =
and a domain=20
name reserved,</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>but not used, for that =
potential=20
purpose?</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>This question raises the =
relationship=20
between the contractual</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>regime embodied in the =
UDRP and the=20
local law of any</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>jurisdiction. Some of us =
have exchanged=20
views on this</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>before. As a non-US =
lawyers I wonder=20
about the extent to</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>which the First Amendment =
has any=20
significant application</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>to the UDRP. A very =
respected US=20
professor and UDRP</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>panellist has suggested =
that it does=20
indeed apply as it may</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>provide the basis for =
rights or=20
legitimate interests in</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>respect of a domain name. =
However, when=20
I read</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>Paragraph 4 (a) (ii) of =
the UDRP, it=20
appears to be</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>directed to a proprietary =
right or=20
interest in the domain</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>name, which, to my way of =
thinking is=20
quite different</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>than a right to =
communicate. I suspect=20
that many other</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>non-US lawyers would see =
it that way=20
too. If that is</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>the correct =
interpretation of the=20
wording, it would</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>appear that domain name =
owners have=20
contracted out</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>of any right of free =
speech to the=20
extent that it must be</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>expressed in a domain =
name that=20
combines a trademark</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>with a word that =
tarnishes it. Does US=20
law make it</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>impossible to contract =
out of First=20
Amendment rights?</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>Is there a conflict =
between the UDRP=20
and US law?</FONT></P>
<P><FONT color=3D#0000ff face=3DArial=20
size=3D2>+++++++++++++++++++++++++++++++</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>Robert A =
Fashler</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>Davis &amp; Company=20
(Vancouver)</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>T =
+1.604.643.2975</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>F =
+1.604.687.1612</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>C =
+1.604.716.8204</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>E =
[email-masked]</FONT></P>
<P><FONT color=3D#0000ff face=3DArial=20
size=3D2>+++++++++++++++++++++++++++++++</FONT></P>
<P>&nbsp;</P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>=3D=3D=3D</FONT></P>
<P>&nbsp;</P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>(2) NAF arbitration=20
http://www.arbforum.com/domains/decisions/94306.htm. In this decision =
the=20
Arbiter James A. Carmody was clearly unaware of the tarnishement issues =
(as well=20
as several other issues surrounding the UDRP).</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>"Both Complainant and =
Respondent have=20
submitted lengthy and well-written briefs and many exhibits to support =
issues=20
and theories which are more appropriately dealt with in contemporaneous=20
litigation pending between the parties. First and Eleventh Amendment=20
Constitutional issues are not within the scope of this =
arbitration."</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>...</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>"Respondent=92s web page =
at=20
http://www.lobofootball.com/maverick/info.html, describes itself as =
"commercial=20
enterprise formed to support UNM Lobo Football fans." Complainant has =
its own=20
websites, public relations and athletic department spokespersons and is=20
essentially a competitor of Respondent with regard to sports information =
and=20
commentary. Respondent has used its domain names and related websites to =
disrupt=20
the business of Complainant. Whether or not Respondent established and=20
maintained the sites for personal commercial gain, I find that these =
sites have=20
been maintained in bad faith to disrupt the legitimate commercial =
activity of=20
the Complainant."</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2>Russ Smith</FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2><SPAN =
class=3D689295802-08082001>End of=20
May 20, 2000 reconsideration request</SPAN></FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2><SPAN=20
class=3D689295802-08082001>=3D=3D=3D</SPAN></FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2><SPAN =
class=3D689295802-08082001>Below is=20
the May 31 reconsideration request concerning the failure of ICANN to =
post the=20
transfer decisions which were stopped as a result of law suit.&nbsp; =
however,=20
the main point of the request was a complaint that the reconsideration =
committee=20
made false statements in reponding to reconsideration request=20
#5</SPAN></FONT></P>
<P><FONT color=3D#0000ff face=3DArial size=3D2><SPAN=20
class=3D689295802-08082001></SPAN></FONT>&nbsp;</P></SPAN></DIV>
<DIV><FONT color=3D#0000ff face=3DArial size=3D2><SPAN =
class=3D689295802-08082001><FONT=20
size=3D2>
<P>-----Original Message-----</P>
<P>From: Russ Smith [mailto:[email-masked]] </P>
<P>Sent: Wednesday, May 31, 2000 5:17 PM</P>
<P>To: [email-masked]</P>
<P>Cc: [email-masked]; [email-masked]; [email-masked];</P>
<P>[email-masked]; [email-masked]; [email-masked]; John =
Berryhill</P>
<P>Ph.D. J.D.; [email-masked]; Francis Gurry; [email-masked]; =
(</P>
<P>Arbiter.Mail ); Arif Ali; Deborah Enix; Erik Wilbers; Patricia =
Simao;</P>
<P>[email-masked]; [email-masked]; Schaber, Michelle; Bowser, =
Walt</P>
<P>[[email-masked]]; [email-masked]</P>
<P>Subject: reconsideration request</P>
<P>&nbsp;</P>
<P>I am filing a reconsideration request concerning the misleading =
response=20
provided by the ICANN's response to RR 00-5. My standing in this matter =
is that=20
I own a number of domain names which has generated a number of frivolous =

complaints. By posting incomplete UDRP decisions ICANN is encouraging =
more=20
frivolous complaints.</P>
<P>The misleading portion of ICANN's response is shown below:</P>
<P>"The ICANN tables do not include notations relating to subsequent =
litigation,=20
because the ICANN staff is simply too small and too overstretched to =
monitor and=20
verify the hundreds of legal disputes that will surely ensue. The=20
Reconsideration Committee finds the ICANN staff indices to be a valuable =
service=20
for the benefit of interested and affected parties, and believes that =
ICANN=20
should continue to provide the listed information in full."</P>
<P>This is misleading and/or false because:</P>
<P>(1) the statements claims that the staff would have to "monitor and =
verify=20
the hundreds of legal disputes that will surely ensue." There is no =
basis in=20
fact to this statement. Paragraph 4(k) of the UDRP states:</P>
<P>"...We will then implement the decision unless we have received from =
you=20
during that ten (10) business day period official documentation (such as =
a copy=20
of a complaint, file-stamped by the clerk of the court) that you have =
commenced=20
a lawsuit against the complainant in a jurisdiction to which the =
complainant has=20
submitted under Paragraph 3(b)(xiii) of the Rules of Procedure. ... If =
we=20
receive such documentation within the ten (10) business day period, we =
will not=20
implement the Administrative Panel's decision, and we will take no =
further=20
action, until we receive (i) evidence satisfactory to us of a resolution =
between=20
the parties; (ii) evidence satisfactory to us that your lawsuit has been =

dismissed or withdrawn; or (iii) a copy of an order from such court =
dismissing=20
your lawsuit or ordering that you do not have the right to continue to =
use your=20
domain name."</P>
<P>This rule describes a very specific situation and a 10-day time limit =
to file=20
a "stay" of the transfer order. The ICANN staff (or the UDRP providers) =
would=20
only need to monitor whether the lawsuit paperwork was filed within 10 =
days in=20
order to halt the transfer. There is no rational basis to the claim that =
the=20
staff would have to "monitor and verify the hundreds of legal disputes =
that will=20
surely ensue."</P>
<P>Furthermore, by failing to post this information, the full result of =
the UDRP=20
proceeding is not being made available to the public. It is well known =
the UDRP=20
decisions have not been consistent. by failing to post complete =
information=20
ICANN is misleading the public as to the true outcome on the UDRP =
procedure. In=20
other words, the public is not seeing that numerous lawsuits are being =
generated=20
as a result of poor or sketchy decisions being rendered as a result of =
the UDRP=20
process. </P>
<P>Therefore, I request that all providers be required to post the =
complete=20
decisions, which includes whether a transfer was not completed because=20
litigation was filed to stop the transfer under rule 4(k) of the UDRP. I =

understand poor UDRP decision have resulted in a series of lawsuits =
which may=20
not have occurred if the decisions were rendered in accordance with the =
UDRP=20
and/or if a reasonable decision was published that explained the =
reasoning=20
behind the decision.</P>
<P>Russ Smith</P>
<P><A=20
href=3D"http://consumer.net">http://consumer.net</A></P></FONT></SPAN></F=
ONT></DIV>
<DIV><FONT color=3D#0000ff face=3DArial size=3D2><SPAN =
class=3D689295802-08082001>Wnd of=20
May 31, 2000 reconsideration request.</SPAN></FONT></DIV>
<DIV><FONT color=3D#0000ff face=3DArial size=3D2><SPAN=20
class=3D689295802-08082001></SPAN></FONT>&nbsp;</DIV>
<DIV><FONT color=3D#0000ff face=3DArial size=3D2><SPAN=20
class=3D689295802-08082001>=3D=3D=3D=3D=3D</SPAN></FONT></DIV>
<DIV><FONT color=3D#0000ff face=3DArial size=3D2><SPAN=20
class=3D689295802-08082001></SPAN></FONT>&nbsp;</DIV>
<DIV><FONT color=3D#0000ff face=3DArial size=3D2><SPAN=20
class=3D689295802-08082001></SPAN></FONT>&nbsp;</DIV>
<DIV><FONT color=3D#0000ff face=3DArial size=3D2><SPAN=20
class=3D689295802-08082001></SPAN></FONT>&nbsp;</DIV>
<DIV><FONT color=3D#0000ff face=3DArial size=3D2><SPAN=20
class=3D689295802-08082001></SPAN></FONT>&nbsp;</DIV>
<DIV><FONT color=3D#0000ff face=3DArial size=3D2><SPAN=20
class=3D689295802-08082001></SPAN></FONT>&nbsp;</DIV>
<DIV><FONT color=3D#0000ff face=3DArial size=3D2><SPAN=20
class=3D689295802-08082001></SPAN></FONT>&nbsp;</DIV>
<DIV><FONT color=3D#0000ff face=3DArial size=3D2><SPAN=20
class=3D689295802-08082001></SPAN></FONT>&nbsp;</DIV>
<DIV>&nbsp;</DIV>
<DIV>&nbsp;</DIV>
<BLOCKQUOTE=20
style=3D"BORDER-LEFT: #0000ff 2px solid; MARGIN-LEFT: 5px; MARGIN-RIGHT: =
0px; PADDING-LEFT: 5px">
  <DIV class=3DOutlookMessageHeader><FONT face=3D"Times New Roman"=20
  size=3D2>-----Original Message-----<BR><B>From:</B> [email-masked]=20
  [mailto:[email-masked]]<B>On Behalf Of</B> M. Stuart =
Lynn<BR><B>Sent:</B>=20
  Tuesday, August 07, 2001 10:16 PM<BR><B>To:</B>=20
  [email-masked]<BR><B>Cc:</B> [email-masked]<BR><B>Subject:</B> [ga] =
Re:=20
  Reconsideration<BR><BR></DIV></FONT>
  <DIV>Mr. Smith has indeed sought reconsideration on just one occasion, =
and his=20
  complaint was carefully considered by the Reconsideration Committee =
and the=20
  ICANN Board.&nbsp; The committee's recommendation can be viewed at =
&lt;<A=20
  =
href=3D"http://www.icann.org/committees/reconsideration/rc00-1.htm">http:=
//www.icann.org/committees/reconsideration/rc00-1.htm</A>&gt;.&nbsp;=20
  I think a review of that document.&nbsp; A response to Mr. Smith's =
attempt to=20
  reargue the matter appears at &lt;<A=20
  =
href=3D"http://www.icann.org/committees/reconsideration/committee-respons=
e-24apr00.htm"><SPAN></SPAN>http://www.icann.org/committees/reconsiderati=
on/committee-response-2<SPAN></SPAN>4apr00.htm</A>&gt;.&nbsp;=20
  A fair review of those documents shows that Mr. Smith's allegation is =
not=20
  supported by the facts.</DIV>
  <DIV><BR></DIV>
  <DIV>Stuart</DIV>
  <DIV><BR></DIV>
  <DIV><BR></DIV>
  <DIV>At 7:36 PM -0400 8/7/01, [email-masked] wrote:</DIV>
  <BLOCKQUOTE cite type=3D"cite"><FONT face=3DArial>Dear Mr. =
Lynn,<BR><BR>A=20
    serious charge has been posted to the General Assembly list=20
    (reproduced<BR>below) which should not go=20
    =
unanswered:<BR>http://www.dnso.org/clubpublic/ga/Arc08/msg00308.html<BR><=
BR>Please=20
    investigate this complaint. &nbsp;We need to be able to have faith =
in=20
    the<BR>reconsideration system, or the credibility that ICANN seeks =
to=20
    achieve may<BR>readily be lost. &nbsp;&nbsp;We appreciate the =
attention that=20
    you will devote to this<BR>matter.<BR><BR>Thank you,<BR>Danny=20
    Younger<BR>Chair, GA<BR><BR><BR>&gt;May I remind you that you have =
30 days=20
    to make a reconsideration request&gt;<BR>after you experimented the =
problem.=20
    You will find the necessary information&gt;<BR>at the following=20
    page:&gt;</FONT><A=20
    href=3D"http://www.icann.org/general/reconsideration.htm"><FONT=20
    =
face=3DArial>http://www.icann.org/general/reconsideration.htm</FONT></A><=
FONT=20
    face=3DArial><BR><BR>I have filed these in the past. &nbsp;In some =
cases the=20
    answers were not<BR>responsive to the complaints. &nbsp;In other =
cases ICANN=20
    refused to answer or post<BR>the submission. &nbsp;I resubmitted =
some but=20
    they refuse to acknowledge or answer</FONT></BLOCKQUOTE>
  <BLOCKQUOTE cite type=3D"cite"><FONT face=3DArial>the submission. =
&nbsp;The=20
    reconsideration system is a complete sham. =
&nbsp;</FONT></BLOCKQUOTE>
  <BLOCKQUOTE cite type=3D"cite"><FONT =
face=3DArial><BR></FONT></BLOCKQUOTE>
  <BLOCKQUOTE cite type=3D"cite"><FONT face=3DArial>Russ =
Smith</FONT></BLOCKQUOTE>
  <DIV><BR></DIV>
  <DIV>-- <BR><BR>__________________<BR>Stuart Lynn<BR>President and=20
  CEO<BR>ICANN<BR>4676 Admiralty Way, Suite 330<BR>Marina del Rey, CA=20
  90292<BR>Tel: 310-823-9358<BR>Fax: 310-823-8649<BR>Email:=20
[email-masked]</DIV></BLOCKQUOTE></BODY></HTML>

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