Revamp the Domain Name Dispute Policy

"Hell isn't merely paved with good intentions—it's walled and roofed with them. Yes, and furnished too."

by Julie Wheeler [January 9, 2002]

It has been evident for some time that although the Uniform Dispute Resolution Policy (UDRP) roughly fulfills the requirements for which it was created it is seriously in need of revision. This became even more evident when eResolution, one of the four UDRP providers, closed its doors late in November 2001 citing the inequity of the system as part and parcel of its downfall.

What is it that conventional wisdom says about good intentions?

Indeed, it says, "the road to Hell is paved with good intentions."

Bypass or blockade
The Internet Corporation for Assigned Names and Numbers' (ICANN) intentions were certainly good when the organization first started working with intellectual property experts on the UDRP. Its purpose was simply to allow domain name disputes to be resolved by panels of experts without having to go to court. It was intended to circumvent the legal system—to simplify it by allowing those individuals who would not likely file suit a fighting chance at maintaining ownership when the domain name is rightly theirs.

The UDRP was to serve as a layer around the judicial system and catch the domain name dispute cases it could rather than bogging down the courts with frivolous lawsuits. But some of the UDRP cases went on to the court system anyway. Now, it seems as if the UDRP has taken on a life of its own.

Is ICANN unnecessarily re-inventing the legal system for the use of domain name disputes? Or is it simply trying to take a system that has problems and make it foolproof? Either way, the Domain Names Supporting Organization (DNSO), which has had the enormous task of trying to reform the UDRP, has posted a questionnaire on the subject in search of a final solution.

Some of the more interesting issues being scrutinized include the ability of claimants to choose the UDRP provider they want to hear their arguments. The questionnaire asks for claimants' reasoning in the selection process. However, as eResolution noted, trends indicate that many claimants did their research to discover which providers most often awarded names in favor of claimants, trademark holders, or cyber squatters, as their needs dictated.

If you had a choice of where your case would be heard in a legal complaint you brought forward, wouldn't you make your choice in the same way? Of course, this means that the entire domain name dispute resolution process is not entirely fair, allowing the seedy underbelly of Net businesses to rise to the surface and take the policy along with it.

For example, Professor Michael Froomkin of the University of Miami, a critic of UDPR, gained notoriety when cybersquatters selected him in several prominent cases. In one of those, a panel Froomkin was on ruled that Internet consultant Jeff Burgar was allowed to keep his domain brucespringsteen.com, despite attempts by Sony Records to claim the domain.

It makes more sense to have a process guaranteeing the random selection of UDPR providers in place, which is currently built into new registries operation guidelines. There will undoubtedly be other considerations that will need to be addressed on an individual basis, such as language barriers for example. But with random selection, one or two UDPR providers would not become more prominent than others because of their decision ratios.

Another interesting question the DNSO is posing to the Internet community at large is how an appeals process should work. This question is likely in part a response to the multitude of appeals filtering into the court system as of late.

Authority of applied law
Should appeals go from the UDRP arbitration system into the traditional judicial system? If so, how much precedence does the UDRP provider really have? And more importantly, in international cases, which country's judicial system has jurisdiction?

Perhaps instead the UDRP should have its own appeals process, allowing for another impartial panel to hear disputed decisions? While this could somewhat diffuse the problem with certain providers being chosen over others, what if the losing party of the appellate ruling did not agree with the decision? Should the UDRP have a supreme court of sorts to hear cases that could not be otherwise resolved?

Where would it all end?

Will the UDRP find its place in the Internet structure without becoming its own independent judicial system?

It is a difficult road the DNSO will face to sort out this complex problem, if there is indeed a resolution at all to the mess that's been created. At this point, the DNSO is poised to continue on a long journey down the road of "good intentions."

—End