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In a recent article at DomainNameWire.com, CitizenHawk was called out by a National Arbitration Forum (NAF) panelist for the submission of automated complaints which contained complete nonsense. Through the discussion in the comments to that article, the community discovered that the problem is far deeper.
It turns out that UDRP panelists at NAF have been churning out boilerplate cut/paste decisions of their own, with utter nonsense of their own, and that this has been going on for years. In a recent decision involving the wooot.com domain name, there was a shocking result that the complainant proved their case, but instead of transferring the domain name to the complainant, the domain name was instead cancelled. The community suspected that a cut/paste job was to blame, and indeed keen observer Andrew Allemann noticed that the wooot.com decision contained text completely unrelated to the case, saying that:
Complainant held a trademark registration for “AOL” and Respondent registered the domain name “iaol.com”).
This was obviously pulled out of some other unrelated case, as the complainant was WOOT, not AOL.
Looking into other cases by panelist Nelson A. Diaz (the panelist in the wooot.com case), it was discovered that in the tamarind.com decision, there was some very nonsensical language in the decision, namely that:
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
This is saying that the complainant proved their case, but is declared a loser. Through analysis of other NAF cases, it appears that originally a panelist years ago wrote the following language:
Complainant not having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Note the word “Complaint not” at the beginning of the sentence, which makes the sentence perfectly fine and logical. Over time, the word “Complainant” was dropped, which still kept the meaning of the sentence intact. However, at one point a panelist, probably because they were cutting and pasting from other decisions, dropped the word “Not” too! Removing that word made the sentence completely illogical.
Was this a fluke? It turns out not to be the case at all, and UDRP panelists have been systematically copying and pasting this nonsensical language into decisions. I found 41 cases of this nonsense alone, in the following cases:
1302612 1299752 1297995 1270184 1267051 1265798 1260576 1259275 1247548 1236932
1236721 1202940 1195739 1182336 1172987 1158551 1140580 1128992 1128482 1122960
1065183 1048716 873313 823027 818403 811632 804703 662187 639195 587435
555041 550345 514784 488845 469107 352423 289033 250240 237522 221239
208630
Some of these were even 3-person panel decisions, where one would expect greater scrutiny and care.
As Zak Muscovitch has documented in a recent study, there are certain NAF panelists who handle a disproportionate number of cases. They’re churning out decisions like a sausage factory. In my opinion, this use of “boilerplate text” in the decision-making process of panelists demonstrates that some of the “ingredients” that are going into the sausages are not kosher.
This use of boilerplate text goes directly to the issue of systematic bias against domain name registrants in UDRP cases by some panelists. It is obviously a lot more work for them to deviate from that template. Given the choice of doing extra work (for no extra money) or simply cutting corners and filling in the blanks, the economic incentives for panelists would lead to excessive rulings against domain registrants. I call upon ICANN to seek an explanation from NAF, who has a very interesting history. Indeed, a case might be made that they should be decertified as a provider.
For a long time I have also called for UDRP decisions to be in standardized XML formats, so that academic researchers could perform better analysis of decisions. There are over 2000 matches in Google Scholar for the term “UDRP”, but only a handful that scrutinize the decisions themselves. UDRP providers successfully argued for and achieved mandatory electronic filing of complaints, in order to save themselves money, but they have failed to output their own decisions in a standard format so that their work can be scrutinized. At yesterday’s ICANN Board meeting, the Board disussed whether UDRP providers need to be brought under contract with ICANN. No minutes to that meeting have been provided to the public, but ICANN should require UDRP providers to provide their decisions in a standard format. I believe that one of the studies that can and should be conducted is the extent to which UDRP panelists are using boilerplate decisions and the contribution of this to bias against domain registrants.
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DomainNameWire is covering the story too.
I think NAF and ICANN need to do some explaining.
I think you have proven bad writing by the panelists, not bias, certainly not by citing 41 decisions where the registrants all prevail. The last line of the TAMERIND.COM decision is not ‘nonsense’, nor was the mistake repeated 41 times. The sentence “Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED,” means that the Panel (not the complainant) has established, as in decided, the three elements. As they note that the complainant did not prevail on the three elements, the complaint is denied and that seems to be the case in the decisions you cited (I did a random check - in all of them the registrant prevailed). I will grant that the use of the word ‘establish’ was confusing as a party normally ‘prevails’ by ‘establishing,’ but a panel establishes its holdings as well. Certainly ‘determined’ would have been the better word, but this is a case of imprecise writing in the boilerplate, and not sloppy use of the boilerplate leading to erroneous statements.
Martin, Your analysis would make more sense if it was necessary to determine all three elements in order to deny a complaint. However, it is not necessary to do so, since the complainant's failure to establish a single element is all that is required for a denial.
Martin: With respect, these decisions had the registrants all prevail because by definition the phrase that I was searching for was that specific result (i.e. I only noticed it because the phrase was highly unusual). Clearly, we all know the NAF statistics (read the articles linked to within the article), where the most prolific panelists are also typically the ones that find most in favour of the complainant.
Contrast that with a study of WIPO panelists released yesterday, where that is not the case.
Last week another study of NAF was released in the context of consumer arbitration.
Trying to argue about the meaning of “established” seems odd, given that in 99% of the cases the phrasing is:
i.e. when panelists are awarding the complainant the victory because the complainant established all three elements. Why else would the phrase “Not having established” appear in so many cases, then, if the ordinary meaning of “established” isn’t being used? Did the panelists who wrote “Not having established” mess up, i.e. not complete their analysis? It stretches belief to think that “established” morphs in meaning so much….the simplest explanation is usually the truth, not debates like “that depends on what your definition of ‘is’ is.”
Actually, I think this example goes even further to demonstrate the bias, namely that the DEFAULT text is probably “relief shall be GRANTED.” A panelist has to go out of their way to change things from the prejudiced position, that the complainant is going to win. And sometimes when they actually do change the word “GRANTED” to “DENIED”, they forget that they have to change the beginning of the sentence too. However, we never see it happen in cases where they lazily go with the flow and grant the prejudiced decision.
Feel free to explain why Nelson Diaz was referencing “Complainant AOL” in a case where the complainant was WOOT, as mentioned above:
That was the cut/paste “smoking gun.”
The good folks at NAF caught with the old copy/paste again! There was a recent UDRP regarding AdventureRV.com where the complainant not only lost, but was found to have engaged in Reverse Domain Name Hijacking.
However, in NAF’s index of cases, it’s listed as “Transferred”! Here’s the annotated screenshot, before they go and change it.
NAF decisions are drafted by in-house staffers who present the drafts to Panelists. If the Panelists agree with the staffer’s decision, they can simply adopt the decision as their own. If the Panelists disagree, the Panelists have to draft a new decision. There is certainly an incentive to go along with the staff draft, but let’s give panelists a little more credit. Most panelists that is.
Staffers undoubtedly cut and paste, as all lawyers do—especially when working for so little money. The real issue is whether the cutting and pasting is a sign of something more sinister—bias. Justice by factory because the trademark holder is always right.
It seems that a number of the cut and paste jobs here actually went in favor of the Respondents. I’d need to see more before I could say this is bias and not just sloppiness. Also, what was being cut and pasted makes a big difference. The UDRP system is far from perfect, and certain panelists are doing more of a hatchet job than they should be, but when they are getting paid a nominal amount to review papers and draft a decision, some degree of recycling is likely to happen. Still, it wouldn’t kill NAF to review the decisions before they’re published.
Brett E. Lewis
http://www.Lewishand.com
http://www.trademarkattorneys.com
I find it shocking that “in-house staffers” are drafting NAF decisions. Thanks for a glimpse into the “sausage factory”, Brett.
Does WIPO do the same?
I don’t believe that WIPO does it.
I’m not sure exactly how NAF does it, but they used to have staff members draft the decisions first, then submit them to the Panelists. The Panelists could adopt, modify, or reject the draft decisions. I’m not sure if they do that when there’s a three-member Panel, since contested matters are generally more complex and more difficult to decide.
Brett E. Lewis
http://www.LewisHand.com
http://www.TrademarkAttorneys.com
I'm wondering whether Section 15.(a) of the UDRP rules would bar would NAF is allegedly doing. In particular it says:
It would seem that the decision is being made on more than just the basis of the "statements and documents submitted" -- the decision is being made based on statements and documents provided by in-house staff of the provider itself. How do we know whether or not these unidentified in-house staff meet the standards of "impartiality and independence" in section 7 of those same rules?Judges often rely on law clerks to assist them to draft decisions. The idea may not be all that different. The only issue would be whether panelists are abdicating their responsibility to be impartial fact finders in lieu of just signing onto a draft decision. I don't believe that most panelists would do that, but for some, it might happen -- especially if they have a particular view of respondents that fits the draft. Brett E. Lewis www.LewisHand.com www.TrademarkAttorneys.com
And just a side note here—isn’t it practicing law without a license for CitizenHawk to be representing clients in legal proceedings?
Brett E. Lewis
http://www.LewisHand.com
http://www.TrademarkAttorneys.com