WIPO has been taking Screenshots of whatever is on a domain name as soon as a UDRP Is filed and they have been furnishing the screenshot to the UDRP panel who has been taking the screenshot into account as evidence in making their determination.
This revelation came to light by John Berryhill who read the following sentence in the recent 4Chan.com UDRP decision:
“The Center generated, as it does as a matter of standard practice, a screenshot of the website associated with the disputed domain name following Respondent’s filing of the Complaint.”
Mr. Berryhill has been working behind the scenes to confirm that WIPO has in fact has been taking a screenshot of the domain name upon receipt of a UDRP complaint and furnishing it to the panel without the knowledge of the domain holder and of course has been telling WIPO why its just plain wrong.
As Mr. Berryhill noted in an email sent to WIPO:
“”This is troubling for many reasons.
1. It is a fundamental principle of Western Jurisprudence that an accused party have access to all of the evidence to be used against that party. Even in civil disputes, both parties have the same access to evidence to be used in the adjudication.
2. A UDRP provider is not empowered to be an investigator in the case.
3. The use of “secret evidence”, available to neither party, is not contemplated anywhere in the UDRP or the Rules. The Rule 12, for example, states that the decision shall be based on the Complaint, the Response, and any further material that may be requested in the Panel’s discretion.
As noted in D2005-0241, the contents of web pages are often “geo targeted”. In order to conform with copyright licensing restrictions, advertising contracts, and to provide local content, what one sees on a “web page” depends upon where you are.
If, for example, I print a copy of the webpage for the music service Pandora.com – ragingly popular in the US – from a location outside of the US, the only thing I get is a letter from Pandora explaining that their service is not licensed in the country where I am attempting access.
Furthermore, as anyone knows, the advertising content which is served on webpages – banners, etc. – is also determined by the browsing history, search history and cookie content of the computer utilized to perform the access. Likewise, contact information, such as telephone numbers are frequently based on geo-detection of the visitor. In point of fact, one frequent Respondent, Marchex, owns and uses patented technology for this very purpose, allowing geographic licensing of contact information for generic services which are locally provided. In other words, at a site such as PlumbingContractor.TLD (for example), the “contact number” can be regionally assigned based on whatever local plumber has contracted for placement of their contact information on the page as accessed by local users.””
A WIPO official told Mr. Berryhill that the purpose of taking and furnishing the screenshot is to allow the panel to verify whether notice was sent to all contacts on the web page.
However that doesn’t make sense since, by the time the panel is appointed, it is too late to respond, and it certainly makes no sense when there is no contact information on the web page in the first place.
More importantly the 4chan.com panel expressly does not use the screenshot for that purpose, and instead uses it as substantive evidence in the case.
Its a very troubling development that a UDRP provider which is suppose to simply accept a case, and appoint and panel unilaterally has determined to furnish “evidence” to the panel which up to now has been without the knowledge of the parties to the proceedings.
disgusting
Just another example of due process being ignored. These UDRP providers are a poor imitation of real courts.
Hmm, this is not news to me. I always check the logs of my several domains every day,and yes I can confirm that this has bene going on for Years .I have proof in the logs. This shows that WIPO
CANNOT be considered as “impartial” as is required under the zzzzzzzz, now dont fall asleep, Human Rights Act etc. I just wonder how this will sit with the Courts and will ask my lawyer to consider including this in our evidence seeking to set aside a UDRP decision as showing process is biased.
And do not also forget that WIPO is the issuer of Worldwide Trade Marks. They should be involved in such matters that concern the judgments on such trade marks.
Hmm “Respondents filing of the Complaint” DOH !! that is wrong for start.
Landing Page (parking page) ad results are so easily manipulated, that anyone can find a way to make it look like a domain is purposefully targeting the company going after the domain.
To Mike’s point about results in search being different based on GEO, it is incredibly easy for anyone with a basic level skill set with Photoshop, to doctor screen shots of search results and or parking page results. And based on GEO, and the nature of how these systems work, it’s pretty reasonable for a panelist to not discredit a submitted screen shot regardless if the results can be reproduced by a panelist or not.
Also, I would not also think that it isn’t out of the realm of possibilities (especially for urls that are six and seven figures) that a company wouldn’t go as far as to start bidding on paid search results with the URL that they don’t even own, simply to game results in their favor during this “discovery process”.
If you muddy the waters by making the argument that the URL is being used by 3rd parties to promote other sites, and that the current domain owner is not doing anything about it, it’s just more of an argument as to why it should be turned over to the company who has a ™ and or is claiming rights based on being established with the same and or similar name (common law) for a long time.
The current process for UDRP/WIPO has so many holes within it, it’s shocking that we don’t have 10X more RDNH cases than we do now. There’s been a lot of reports lately of domains being “hijacked” in paid search ads and it can be difficult to police.
“Also, I would not also think that it isn’t out of the realm of possibilities (especially for urls that are six and seven figures) that a company wouldn’t go as far as to start bidding on paid search results with the URL that they don’t even own”
It’s been done. In New Pig Corporation v. Adam Dicker , we found the Complainant was doing that.
“Complainant has placed a spectacularly high maximum bid of $2.74 to have its advertisement for absorbents displayed in response to Internet searches for the word “pig.” Complainant caused the display of its own ad on the Respondent’s website, and that such a result was entirely independent of any consciously directed activity of the Respondent.”
Sean
The points regarding “about results in search being different based on GEO, ” are Mr. Berryhill’s points
WIPO taking a screenshot of a website on receipt of a complaint can inform as to gaming of the content and identity of a website, before the hearing.
Also, WIPO should snap the whois. It probably does.
“Complainant could not reasonably have anticipated Respondent’s detailed arguments based on alleged change in ownership and control of the disputed domain name.”
That’s what I am talking about! The findings note
How is WIPO supposed to keep track, if it doesn’t take a screenshot, that the respondent is in compliance? That is Section 8.
Transfers During a Dispute.
Really, John? Really, William? How is WIPO supposed to ensure the defense doesn’t lead the complainant on a tangent of whackamole, unless it takes a screenshot and makes sure?
John Berryhill, Esq:
I admire what you stood for. I admire what you are, but what you said doesn’t make any sense to me.
“Really, John? Really, William? How is WIPO supposed to ensure the defense doesn’t lead the complainant on a tangent of whackamole, unless it takes a screenshot and makes sure?”
I’ll type this slowly, to make sure you understand it.
The problem is not WIPO taking a screenshot and providing it to the Panel. That’s actually a convenience, since many times the Complaint doesn’t include one, and I have to spend a lot of time reconstructing what it was from Archive.org or screenshots.com, for which the coverage may be spotty.
The problem is WIPO collecting evidence and providing it to the Panel WITHOUT EITHER PARTY SEEING WHAT IT IS.
In one of the URS disputes recently, the screenshot was a server error page, since the complainant had just happened to get the shot when the site was down. Because of that, it was necessary to explain the server error.
But imagine a situation where the server is down, WIPO takes the screenshot, and the respondent has absolutely no idea that the reason for the server error needs any explanation at all.
That’s why we don’t have “secret evidence” at trials.
Now, take a look at what happened in this dispute:
http://www.wipo.int/amc/en/domains/search/text.jsp?case=D2014-0611
“It is clear to the Panel, and accepted by the Complainant, that these links are geo-targeted; there are Swiss links in the Center’s screenshot, the Center presumably having accessed the disputed domain name in Switzerland, and Swedish links in the Complainant’s screenshot, the Complainant presumably accessing from Sweden. Similarly, United Kingdom links appeared when the Panel accessed the site from that country.
…
Indeed, if the Panel’s sense that these links are geo-targeted is correct, it is very likely that the offending content would not even have been displayed to the Respondent had it viewed its own website from its location in the USA.”
Now, not all panelists have the faintest idea how these systems work.
You are completely missing the point here. By obtaining evidence and supplying it to the Panel, neither party has any idea what the Panel might be basing its decision on, or whether there is a technological reason why a screenshot in the Complaint might look different from one taken in Switzerland.
Again, I don’t have a problem with WIPO providing a screenshot.
What I have a severe problem with is WIPO not documenting this procedure – it only popped up in two UDRP decisions recently, and with WIPO not informing the parties or providing it to them.
If you are okay with a neutral adjudicator providing evidence to the panel behind the backs of the parties, so that nobody knows what the Panel might be basing its decision on, then I would suggest you consider fundamental concepts of due process.
As far as Section 8 goes, the registrar is required to lock the domain name on the initial pre-commencement notice from the UDRP provider. That’s not even an issue.
And, absolutely, cybersquatting liability runs to $100K. I have no idea what that quote above has to do with the issue here – a legally immune adjudicator using evidence in a case which no party to the case is allowed to see. That’s a very slippery slope.
You said: *******************Quote*********************************
The problem is not WIPO taking a screenshot and providing it to the Panel. That’s actually a convenience, since many times the Complaint doesn’t include one, and I have to spend a lot of time reconstructing what it was
*************************Unquote**********************************
The screenshot is okay with you. And yet, the screenshot is not okay with you. I am confused. The title of this blog post is: Be Warned: WIPO Taking Screenshots When UDRP is Filed. So, it would be a convenience to you. And yet, if the panel finds something objectional, that would be considered evidence that is NOT supplied to the complainant or the respondent?
In Section B, the panel finds:
************************Quote*****************************************
The links appearing in the screenshot generated by the Center – more contemporaneous with the filing of the Complaint – referred to women (e.g. “Beautiful Asian Women”). From the information submitted to the Panel, it appears that “beautiful women” are a fairly regular theme of Complainant’s bulletin board. Respondent’s pay per click website does appear to be designed to generate links that may be competitive with Complainant’s services.
***********************Unquote*****************************************
Was that a surprise to the Respondent? Was John Berryhill consultant to the Respondent? Did this finding appear in the decision, and you felt blindsighted, because it was not included in the hearing? Respondent undertook to claim its links WERE NOT COMPETITIVE, in the sentence above the above-mentioned quote, in Section B:
***********************Quote*********************************************
Respondent has further argued that the advertising links generated on its webpage addressed by the disputed domain name are not in any way competitive with the services offered by Complainant. However, while the links appearing in Complainant’s supplemental submission would not necessarily be construed as competitive, it appears that Complainant generated the screenshot for that submission sometime after filing of the Complaint.
**************************Unquote********************************************
@ Mike Berkens, I don’t appreciate the new, “quote,” format, with script font, and arbitrary bolding. Please delete this whole blog post with comments. This is not John Berryhill’s legacy, the one whose comments I am fond of studying.
It can also mislead the panel for a number of reasons.
What is your objection to the parties having all the evidence in the case? Seriously, I would like to know the reason for that.
How about ICANN performing a background check on the Respondent as well? Traffic tickets, credit score, etc.
Why not make the entire case file secret? Sure.
John – Or let the cases be decided by a Saudi jury with loss of limb as the rule.
Why cannot the Complainant take Screen shots themselves ?. They often do, so why does WIPO feel it is their job to take screen shots ?. If the Complainant is remiss and failes to take screenshots then that is their stupidity and should not have support of WIPO or other provider to fill that gap. A Judge in a Court decides his cases on evidence presented to him ,not by collecting it himself or via the Ministry of Justice. It shows WIPO as not being neutral from the proceedings,which it should be. By the way, WIPO ,amazingly, told me that they were concerned that many UDRP’s now being issued were not suitable for UDRP.
Louise
Have no idea of what your talking about, if you look above your the only one with the quotes in bold and now this
You said: *******************Quote*********************************
The problem is not WIPO taking a screenshot and providing it to the Panel. That’s actually a convenience, since many times the Complaint doesn’t include one, and I have to spend a lot of time reconstructing what it was
*************************Unquote**********************************
The screenshot is okay with you. And yet, the screenshot is not okay with you. I am confused. The title of this blog post is: Be Warned: WIPO Taking Screenshots When UDRP is Filed. So, it would be a convenience to you. And yet, if the panel finds something objectional, that would be considered evidence that is NOT supplied to the complainant or the respondent?
In Section B, the panel finds:
************************Quote************************************
Which I’m not particularly found of
“”similar quotes marks still work in the comments” don’t know what your doing