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Wm Morrison Supermarkets PLC of Bradford, UK, filed a UDRP against the registrant of MorrisonsFresh.com. The Respondent is primarily an importer of fresh fruit, some of it arriving from places such as central America. The Complainant is a company with over 110,000 employees and has annual revenue of around GBP 17 billion. In this UDRP, […]
The domain CarCam.com does not infringe on a mark – that’s the consensus of the WIPO panel that decided on this UDRP case. The Complainant, Limited Liability Company AV 808 of St. Petersburg, Russian Federation, owns the International Trademark Registration no. 1150989 for CARCAM, registered on January 9, 2013. They operate CarCam.ru since 2010. Meanwhile, […]
The UDRP against the domain Paches.com delivered a finding favoring the Respondent, who registered the domain 19 years ago. Paches is a dish from Guatemala, as numerous results show on Google. The WIPO panelist maintained that despite identifying several points against the Complainant, Sébastien Paches of Morges, Switzerland, who attempted to buy the domain on […]
De-Platforming is Digital Censorship. Blacklisting is Digital Shunning.
“I have always strenuously supported the right of every man to his own opinion, however different that opinion might be to mine. He who denies to another this right, makes a slave of himself to his present opinion, because he precludes himself the right of changing it.” – Thomas Paine (1737-1809)
For those not familiar with the case, Gab.com’s ability to operate was abruptly terminated by Godaddy, among other vendors, who deemed Gab to have violated their terms of service. This de-platforming of Gab generated much discussion in the mainstream technology press. It also prompted a lively discussion in the professional domain name community, including at the popular discussion board NamePros.
As the news broke, and as some elements in the mainstream media rendered their judgement, I embarked on my own search for truth. Along the way, I did have an opportunity to meet with the Founder of Gab, Andrew Torba, an entrepreneur who was willing to swim against the tide for what he believes is right, namely empowering netizens to discuss openly about matters of mutual interest with limited risk of censorship.
Although, I did not take the decision lightly to accept this domain registration, I look forward to partnering with a young, and once brash, CEO who is courageously doing something that looks useful. As I reflect on my own journey as a truth-seeking tech entrepreneur, I have no doubt that Andrew will continue to develop not only as tech entrepreneur but also as a responsible steward — one that can balance bravado with diplomacy and who tempers courage with humility.
A Word on Inalienable Rights
De-platforming a haven of free speech is not about left or right. Anyone who remembers studying civics is familiar with the concept of inalienable rights — rights that a worthy government can only protect but would have no moral authority to take away. The idea of Natural Law and Inalienable Rights dates back to Ancient Greece, if not before. Tolerance for competing views — including those protected by Freedom of Speech and Freedom of Press — is not an American concept even though the Founding Fathers of the United States built a prosperous nation around the concept.
We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness. – Thomas Jefferson
These days there are many kinds of online content that some people find objectionable. When it comes to publishing content, online or offline, there is an interplay between free will and personal responsibility. Specific to Gab, the decision to not only tolerate but to welcome competing views, does come with a responsibility to take action when free will is exhibited without personal responsibility. This was famously illustrated in the opinion rendered by Supreme Court in Watt vs. United States (1969) where threats of violence was deemed unlawful.
In the case of Gab.com, there is a duty to monitor and lightly curate, keeping content within the bounds of the law. The duty is perhaps best explained by Uncle Ben of Spiderman fame:
“A Republic, if you can keep it.”
– Ben Franklin (1787)
A Word on Decentralization of Ownership
One of the unique features of Gab is their democratic approach to capitalization. For an online media portal with exponential growth, there are variety of potential acquirers and investors that would have a keen interest in providing growth capital, even for a business model that is presently loss-making as is the case with Gab. Rather than go down Sand Hill Road, they have opted to follow in the footsteps of Blockchain by designing a distributed ownership model. And while Initial Coin Offerings (ICOs) lost some of their heady momentum, the premise of shared ownership for shared outcomes remains compelling.
In the domain name world, we often talk about domain ownership. The reality is that we are mostly leasing domains from registries, who in turn is often regulated by a regulator ICANN. Recently I have been a vocal advocate for Forever domain registrations whereby a domain is free of ongoing expense. At the moment, this is possible through Epik though there is still more work to do to make this a risk-free industry norm. The danger of not proactively embracing digital sovereignty, in all its forms, is that the digital world will inevitably find a way to achieve it, with or without domain names.
Let Freedom Ring
To the casual observer, the case of Gab.com seems like it is something new. It is not. It is history repeating itself. While there are consequences to actions, there is also the proverbial risk of throwing out the baby with the bathwater. My hope, for all of our sakes, is that Gab.com treads wisely, using its liberty for the betterment of most, and the enlightenment of all.
‘Those who don’t know history are doomed to repeat it. – George Santayana (1863-1952)
A client of Epik recently pointed out to me that I have apparently annoyed the people at Legitscript. They referenced this post that appears on the Legitscript blog:
Since their attorneys will likely advise them to take it down quickly, I kept a copy should anyone need to see it later on.
Up until today, I had not even noticed their blog post. Now, having seen it, as I am not so easily bullied or intimidated, I herewith post an open letter to both Legiscript and to their sponsors.
To start, here is the full text of my ICANN complaint response:
My official response to ICANN’s complaint from Legitscript – Case ARO-840-05646:
Further to your Notice, I am getting back to you with our findings.
Per your request, I am attaching the full transcript of the correspondence with Mr. Horton of Legitscript related to the domain names in question. This conversation is logged in our online support ticketing system and was handled by a staff member, Matheus Leite.
In the meantime, in the wake of this escalation to ICANN, I have evaluated the content of Mr Horton’s claims. We believe there is sufficient debate on the standing of Legitscript to warrant taking a light hand when it comes to the disposition of the sovereign property of registrants. While we certainly would never condone distribution of “fake pills”, we have no way of adjudicating whether or not the identified domains are in fact engaged in such a practice. Unlike child pornography, where the assessment is obvious and enforcement is swift, online pharmacies require professional evaluation by a competent expert.
As for whether or not Legitscript is competent, a cursory review of the history of the Legitscript entity reveals ample evidence that the group is a proxy for US pharmacy interests, and that they use heavy-handed influence tactics without regard to due process through a court of law where the registrant’s case can be tried and the evidence examined by competent persons who are subject to providing due process. Here is one of many examples:
As a matter of policy, Epik does not host any of these sites. The domains in question are owned by 4 registrants, none of which are affiliated with Epik in any way other than as customers of the registrar. These registrants do receive WDRP notices per the RAA although they use a 3rd party privacy proxy.
As for RAA compliance, we are confident that we are in full compliance of 3.18 of the 2013 RAA:
3.18.1 Registrar shall maintain an abuse contact to receive reports of abuse involving Registered Names sponsored by Registrar, including reports of Illegal Activity. Registrar shall publish an email address to receive such reports on the home page of Registrar’s website (or in another standardized place that may be designated by ICANN from time to time). Registrar shall take reasonable and prompt steps to investigate and respond appropriately to any reports of abuse.
3.18.2 Registrar shall establish and maintain a dedicated abuse point of contact, including a dedicated email address and telephone number that is monitored 24 hours a day, seven days a week, to receive reports of Illegal Activity by law enforcement, consumer protection, quasi-governmental or other similar authorities designated from time to time by the national or territorial government of the jurisdiction in which the Registrar is established or maintains a physical office. Well-founded reports of Illegal Activity submitted to these contacts must be reviewed within 24 hours by an individual who is empowered by Registrar to take necessary and appropriate actions in response to the report. In responding to any such reports, Registrar will not be required to take any action in contravention of applicable law.
3.18.3 Registrar shall publish on its website a description of its procedures for the receipt, handling, and tracking of abuse reports. Registrar shall document its receipt of and response to all such reports. Registrar shall maintain the records related to such reports for the shorter of two (2) years or the longest period permitted by applicable law, and during such period, shall provide such records to ICANN upon reasonable notice.
As you can see from the attached correspondence, the complainant received a prompt reply.
There is ample evidence in this case, and from observations from similar cases, that Legitscript wishes to serve as jury and executioner without being subject to due process.
As we are not in a position to adjudicate whether or not any of the 4 registrants are engaged in an illegal activity, we have referred the complainant to the court system which can adjudicate in these matters.
In the meantime, after reviewing the list of alleged abuse domains, we have taken the domain myxanaxpills.com offline as this domain trespasses on a registered trademark, and is a violation of Epik’s published terms of service. To secure the domain, the TM holder (not the complainant) should pursue UDRP, arbitration or court order.
We will be happy to promptly respond to any and all correspondence from ICANN on this matter. In the event of an adjudicated outcome from a recognized court we will be happy to comply with any takedown request.
In the meantime, we ask ICANN to kindly request the complainant to secure a judgement in a competent court.
The case was closed by ICANN on March 21, 2017.
Now, let me address the blog commentary.
(1) I do genuinely care about people’s wellbeing. My wife is a physician with a successful medical clinic, Naturomedica.com, on the eastside of Seattle. I am also an avid student of health issues and am generally vigilant to matters of personal health. I am rarely sick, avoid vaccines, and rarely take a pill other than nutritional supplements from reputable sources.
(2) I have no way to gauge who is involved in selling genuine therapeutics and who is not. The supplement industry has the same issue where there is much in the way of supplements sold with questionable efficacy. I imagine that businesses that engage in such, will not be in business for long. Caveat emptor.
(3) We are a registrar for relatively few of these types of domains. As far as I know, we don’t host pharmacy sites. As such, this is not about money. It is actually about principles. In particular, it is about due process.
(4) My issue with Legitscript is that they are more than likely serving as a proxy for big pharma They are routinely engaging in bullying tactics, moral suasion and false presumption of guilt.
To be clear, I do genuinely believe that the world does need a qualified global procedure for prosecuting fake pills. Last month I met with the executive team of the World Chambers Federation and ICC International Court of Arbitration, albeit this was for DigitalTown.com, the other company I lead as CEO. Since WIPO does not adjudicate decisions on fake pills, perhaps another entity should. That entity should be competent to test for efficacy of therapeutic claims and also be competent for evaluating whether a branded good is in fact an imposter.
In the meantime, here is what I advise to domain industry stakeholders:
(1) Encourage the ICA to show backbone. Yes, Phil Corwin, this means you. I do love your work, but you need to guide the stakeholders in achieving due process.
(2) Invite and encourage the registrar industry to fight fire with fire. May truth and due process prevail. Registrars have a duty to protect legal registrants. It comes with the job.
(3) When the class action starts for Legiscript, please contact me. I have put them on notice that I object to their false accusation and public presumption of guilt without due process. They are unaccountable thugs.
And I close with a thank you to ICANN for serving as stewards of the industry. While your ongoing interrogatories can at times drive me up the wall, I believe you did get this one right. See you in Madrid for GDD Summit.