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In a previous CircleID article, it was discovered and documented that NAF Panelists and Complainants were systematically copying/pasting nonsense into UDRP decisions.
It has been a couple of months with no action by ICANN, and no public statement by NAF. In a shocking new development, though, it turns out that NAF has quietly edited a past UDRP decision!
As we previously discussed, and as was independently documented on DomainNameWire, the wooot.com decision used to contain the following line:
Complainant held a trademark registration for “AOL” and Respondent registered the domain name “iaol.com”.
This was completely out of place and nonsensical, because the complainant was Woot, not AOL, and iaol.com was a reference to a completely different case in 2002. This was the original “smoking gun” that caused the public to dig further into other cases of “cut/paste” amongst panelists. An archive of the original decision (cached on April 22, 2010) was made at Webcitation.
It turns out that this was not the end of the story. I visited the wooot.com UDRP decision this morning, nearly 2 months later, and found that someone had completely removed the above “smoking gun” sentence from the posted decision. One can view a new Webcitation archive (cached on June 22, 2010) which shows the edited decision. The prior decision was dated April 22, 2010 (at the bottom). This new edited version is now dated April 23, 2010.
I believe that this is unprecedented. There is no audit trail or reference to the prior decision, no history of revisions at the NAF website. There is no explanation offered by NAF or the panelist. Judge Diaz is also continuing to serve as a panelist (note the appointment date of that panel was May 5, 2010, mere weeks after the wooot.com decision).
It is also very alarming that ICANN’s Board deferred making any decision about bringing UDRP providers under contract in their most recent meeting. Indeed, the issue is not even on the agenda for the Brussels meeting.
The public deserves answers, not quiet revisions to history. NAF has been heavily criticized in the past. I believe this latest incident calls into serious question whether NAF can continue being a UDRP provider.
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George, I have not read the decision you are referring to, but does the change alter the outcome of the case or is it simply a correction to a typo. In other words, you are correct that it was probably sloppy work and it should have been corrected before publication. But if this is just a correction of typos that have no impact on the outcome, then I am not sure why this is such a huge concern.
Are you arguing that typos should never be corrected? That once something is published, it has to remain that way for eternity. Or are you just saying there should be a note that says this is version 2 and a note on what was changed?
Just not sure what you are advocating here.
Jeff, Here are a few of the things that worry me about all of this: 1. No ADR provider is under contract with ICANN. There is thus absolutely no accountability. Given NAF's history with the authorities in connection with their having fixed the credit card arbitration process, one wonders why this situation remains. 2. Concerning statistics (mostly about NAF) have come out regarding repetative appointments of a select few panelists. 3. On prior occasions I have asked for corrections in NAF decisions and have been told that it was not possible, that they would not request panelists to do so, and they objected to any attempt on my part to raise the issue directly with the panelists - even if copying the other side in any correspondence. 4. I can understand the desire not to have matters continued post decision - such would be contrary to the spirit of the UDRP. However, to undertake a change to decisions without publication and an audit function is simply unheard of. In the US as you know, when a court alters an opinion it publishes notices of the modification and it is the judges who are doing the modification. Here there is no indication at all that any panelist made the request and no public record keeping of the change. Overall, the ADR providers are a law unto themselves. There is no appeal and no accountability. WHile 4(k) allows a post-UDRP legal action, no care was taken when writing the UDRP to investigate whether a proper cause of action exists for such a proceeding in the "Mutual Jurisdiction". There are no standards for panelists (one is a traffic judge with no IP experience at all). Appointments are not statistically random. They create their own supplemental rules. They actively and selectively promote lines of decisions (e.g. WIPO's Panel Guidelines). In the case of NAF they are (with reason) suspected of having inside clerks ghost-write opinions for delivery to the panelists. Now this. We are in a race to the bottom here. While overall I would say that the vast majority of decisions are correctly decided, it is worrying that registrants are forced by contract to participate in such a system. The proper test for a judicial system is not whether it gets it right in the easy cases but rather it has adequate protections to ensure that the difficult ones are treated properly.
We who write code use tools called "source code control systems" - the one I use goes by the name of "subversion". These tools maintain a repository that tracks changes in code over time, including the reasons why changes were made and by whom. Many of these systems, including "subversion", are able to handle documents. Yes, correcting typos is legitimate, but correcting them in silence and without tracking is inexcusable. One might think that in this world of privately made, privately adjudicated, and privately enforced regulation of the internet that at least some recourse might be made to the kind of technical tools that have been in use since the late 1970s.
If you read the decision (and the linked articles), that might bring you up to speed on the issues, Jeff. This was not a mere “typo.” This was a “smoking gun” which led to other sloppy cut/paste work being discovered by the public. This is about minimum standards for all UDRP providers and panelists. This is about accountability and transparency. Why has ICANN continued to refuse to bring the UDRP providers under contract? Instead you have providers like CAC unilaterally changing their rules without input from the public. This is a “race to the bottom”, with panelists and providers incentivized to encourage forum-shopping (and panelist-shopping, for that matter) by complainants, at the expense of legitimate domain name registrants.
If a decision correction is warranted, there needs to be a documented procedure, along with an audit trail (showing the changes; very easy to do with a content management system; e.g. Wikipedia lets you see all past historical revisions to articles, and other CMS software can do the same). Making quiet changes to published UDRP decisions is simply unacceptable.
What if ICANN started making quiet changes to registry provider contracts to “correct typos”? Oh, some folks would probably like that—maybe registry operators could sneak in unlimited price increases like they tried before. Or, heck, maybe they’d change a few instances of “and” into “or” in the UDRP, which some panelists with their own agenda are already doing.
It’s hard enough keeping track of all the documents ICANN floods the public with - Atlas Shrugged” (Ayn Rand) & “In Search of Last Time” (Proust) are shorter than the current deluge of documents. If we have to start monitoring whether those historic documents also get changed without notice to the public, it’d be impossible to keep up. It would allow for endless historical revisionism (e.g. “what was really decided in the Board meeting of _____, 2003? Oh, it says “B” now. Prove that it said “A” in 2003!” In relation to the wonderful ICANN Ombudsman, has ICANN ever actually appointed him properly? If it was acceptable to simply change the past minutes of meetings quietly, who would ever know?
I’ve long advocated that UDRP decisions be published in a standardized format (e.g. XML) so that academics could study them using automated tools. ICANN has continually refused to mandate this simple requirement which would improve accountability and transparency. The UDRP providers lobbied for electronic filing for all UDRPs, so the data is all there. They wanted the filings in a form that they could handle cheaply and easily. But, when it comes to the public’s access to their decisions, they show their hypocrisy by refusing to provide them in a comparable form that is easy to digest.
The public deserves much better.