[ga] An open letter to Fadi Chehade: UDRP, URS, Lack of Contracts and Forum Shopping

[George Kirikos <gkirikos@xxxxxxxxx>]

In response to continued criticism about ICANN's oversight of UDRP / URS 
providers, e.g. most recently from the ICA:


http://www.internetcommerce.org/URS_Truth_Breach

ICANN issued a 4 page note yesterday:

http://www.icann.org/en/help/dndr/udrp/providers/uniformity-process-19jul13-en

This is far too little, and far too late. As I pointed out in my March 2013 
comments:

http://forum.icann.org/lists/comments-acdr-proposal-01mar13/msg00000.html

ICANN had committed in its summary of comments in *2010* that:

"".... ICANN has been undertaking a process to review its relationships with 
UDRP providers, and that review is ongoing." 

That 4 page note, which appears to have been hastily drawn up, lacking any 
specifics whatsoever, turns a blind eye to obvious problems with the UDRP 
providers. I enumerated some of them in my comments, for instance, systematic 
copying/pasting of nonsense into decisions by NAF:

http://www.circleid.com/posts/20100423_naf_copying_pasting_nonsense_into_udrp_decisions/

the high concentration of decisions in the hands of a small number of 
panelists, as analyzed by attorney Zak Muscovitch:

http://www.dnattorney.com/study2010.shtml

Heck, NAF, of course, faced a lawsuit by the Minnesota Attorney General's 
office and agreed to cease arbitrating credit card disputes:

http://en.wikipedia.org/wiki/National_Arbitration_Forum

If that didn't ring any alarm bells, it's clear ICANN isn't paying attention.


ICANN's response to "forum shopping" demonstrates pro-complainant bias, and is 
a fairy tale. Let me quote from it (from page 3 of the PDF):

"A frequent concerns raised regarding UDRP providers is the potential for 
"forum shopping," or that UDRP complainants will seek out providers that they 
believe will provide a better result. The provision of contracts, however, will 
not stop complainants from filing UDRP disputes with their preferred providers. 
In fact, one of the expected benefits of the diversity of UDRP providers is to 
provide further choice to all who may invoke the UDRP, including issues of 
geography and language. UDRP providers are expected to perform to the standards 
set forth in the UDRP. So long as those standards are used, and the provider is 
adhering to the UDRP, the choice is appropriate to leave to a complainant as to 
which UDRP provider it wishes to use."

Utter nonsense. There's a lot of "ifs" implied there. ICANN is essentially 
saying that, "in a perfect word", it doesn't matter which UDRP provider is 
selected. This isn't a perfect world, though, as clearly shown by past examples 
of UDRP panelists and providers skewing things in favour of complainants. As 
Nat Cohen pointed out in his extensive comments:

http://forum.icann.org/lists/comments-acdr-proposal-01mar13/msg00001.html

the provider "eResolution" had to leave the business, as it was finding too 
often in favour of respondents, compared to other providers (and thus the 
complainants wouldn't select it):

http://www.theregister.co.uk/2001/12/04/eresolution_quits_domain_arbitration/

ICANN CEO Fadi Chehade had recently stated that domain registrants were ICANN's 
primary customer:

http://internetcommerce.org/rights_vs_benefits

but then has since backtracked on that. In the UDRP, a registrant, who has a 
*contract* with registrars (who themselves are contracted parties with ICANN) 
has lesser rights than some 3rd-party complainant. Registrants have only 
obligations, and limited (and diminishing) rights. ICANN simply sees 
registrants as "cows" that are "milked" for ICANN's benefit, with all the 
"mooing" ignored. "Moo" too much and you are sent to the slaughterhouse.

Why doesn't ICANN take the simple "quick fix" recommendation, made in my March 
2013 comments above, that *registrants* be the one to select the UDRP provider 
(in advance)? In that "perfect world" ICANN described above, it *doesn't 
matter* which UDRP provider is selected, if the panelists are simply following 
the rules, standards, etc. Let's rewrite ICANN's paragraph, which talks about 
geographic diversity, etc., but instead make the *registrant* be the one to 
pre-select the provider:

"A frequent concerns raised regarding UDRP providers is the potential for 
"forum shopping," or that registrants will seek out providers that they believe 
will provide a better result. The provision of contracts, however, will not 
stop registrants from selecting their preferred providers. In fact, one of the 
expected benefits of the diversity of UDRP providers is to provide further 
choice to all who may be subject to the UDRP, including issues of geography and 
language. UDRP providers are expected to perform to the standards set forth in 
the UDRP. So long as those standards are used, and the provider is adhering to 
the UDRP, the choice is appropriate to leave to a registrant as to which UDRP 
provider it wishes to use."


Notice the above variation rings equally true! Did the world fall apart, by 
making that change? Certainly not.

Heck, if there was *any* bias by UDRP providers under a system where 
registrants select the provider, ICANN would certainly clamp down, just as they 
clamp down now on registrars (who are selected, shockingly, by registrants) who 
are not in compliance with their obligations. 

BIG QUESTION: If a registrant can select a registrar, and registrars are 
monitored for compliance by ICANN, why can't a registrant also select (in 
advance) its desired UDRP provider, and allow ICANN to monitor the UDRP 
providers for compliance??

I challenge ICANN, and CEO Fadi Chehade himself, to provide a *good* answer to 
that simple question. If Mr. Chehade wants to demonstrate that registrants are 
ICANN's customers,

http://internetcommerce.org/Registrants_Rule


then it should do the *obvious* thing, and immediately make the "quick fix" I 
suggested (which would be an "implementation" choice, not a Policy Choice, by 
the way), namely to permit registrants to pre-select the UDRP provider. By 
ICANN's own statements, as long as UDRP providers are in compliance, it doesn't 
matter which UDRP provider is selected. If it simply doesn't matter, then 
giving that choice to registrants will not cause any problems to legitimate 
providers, and to legitimate complainants. If ICANN believes it holds UDRP 
providers in compliance with required standards, nothing changes in that regard 
if providers are selected by registrants.

ICANN has "talked the talk" about how it acts to serve registrants. Let it now 
begin to "walk the walk."

Sincerely,

George Kirikos
http://www.leap.com/ ;