The Catalonian Matter: Law and Order, Democracy and Freedom of Speech, Censorship and Trust

CircleID CircleID: I'm an engineer, and I firmly believe that Internet matters and, in general, Information Society, should be kept separate from politics, so usually, I'm very skeptical to talk about those and mix things.

Let's start by saying that I'm Catalonian. Despite the dictatorial regime when I was born, forbidden teaching Catalonian, I learned it, even despite, initially for family reasons and now for work reasons, I live in Madrid. However, I keep saying everywhere I go, that I was born in Barcelona, where I consider myself from, and how wonderful is that region. I'm proud of my name, Jordi, and I don't allow anyone to call me Jorge, with is the Spanish translation.

Having traveled over 120 countries in the last 15 years, training people on IPv6 and doing IPv6 consultancy/deployment services, I consider myself "citizen of the world, " and I don't think, in the actual global world, there is any reason for being a nationalist or patriotic in the heart.

That being said, I have good friends and colleagues at every remote place in the world, and that's what really matters.

I think this clearly shows that I'm objective enough to write down this and not being biased by my origins, or my actual living town, on the other way around, being very open-minded as a world traveler.

I've been astonished the last few days because about the endless exchange of letters addressed to ICANN, the European Commission, ISOC chapters, and other Internet-related institutions, even blogs, articles, etc., which make no sense if you know the real history behind all this, instead of those letters with false information.

Let's set the stage. There is a region, within a democratic country, that has some percentage of the population that want to declare their independence. This group of people didn't ask the rest of the citizens in the country, even other people like myself, that was born there. In fact, because I don't live there right now, I will not be allowed to participate in the so-called "process". Even further, I don't know if I will get a passport from there, or if some of the friends I have there who don't want to split, will be expelled from the country, or if they will be allowed to sell their properties there, or if they will be confiscated, etc.

So, we are talking about a departure, asking the people to vote for it, not knowing at all what actually that means, including every small detail, and what will be the exit door for each of the possible cases.

I guess each region or town in our country has the same rights. I want to do it for my own house. I have the right of doing that… it is my property… my land!

Can you imagine this in your own country?

As we are a democratic country, there is a power separation (legislative versus juridical), and by the way, we have a Constitution, that all the Spanish citizens approved after the end of the dictatorial regime, and the corresponding Constitutional Court.

The Constitution is clearly not perfect, and now that we got more experience, since 1978, it could be amended for improving it, by consensus. This could even mean that we change our state model into a federal one, such as the German model, or many other options.

This is nothing different than what we do in IETF, making Internet standards, or in the RIRs, making public policies, or even in ICANN. Right?

Guess what, now some of the participants of a given Regional Internet Registry (RIR), decide to unilaterally change some of those rules, or even split in a different group — let's say a new RIR. Yeah, we could do that, but we need to agree on the process. Hey, coincidently we've had a similar situation recently — IANA/PTI — so we are familiar with that already.

Do you think we will agree in that group in my example, changing the policies before we complete the process? Do you think somebody will agree in finding consensus in a policy proposal not knowing all the details of it? Do you think we will keep allocating IP resources to that group according to new policies that they develop by themselves against the community consensus on the existing policies?

So, this is what the Catalonian Government has done. They have approved, against the law, special laws to make that process, to play games and act like in a theatre, and they try to convince citizens as puppets by means of lies and misinformation, which they are investing public money to propagate in a global world.

Law and order: In a democratic system, we all obey the law. If we don't like it, we have the system to change it. What we can never do is to disobey or call for disobeying before going for a change. Otherwise, this will be a crazy world. Everybody will be able to change his/her mind every other day and create risks for the rest of the citizens. Definitively not the way!

So of course, our Constitutional Court has called for obedience to our Constitution, which means no public money can be invested in the process, and the Catalonian Government, their maximum representatives, has forced people that disagree with the process to resign or pushed them against the law, or involved volunteers, asking for illegal actions, and invested in having embassies of a non-country, which cost a lot of money despite having difficulties to pay the public servants, to cover the cost of the education and health system, and so on, and asked for more money to the Spanish Central Government, from the taxes of all the citizens, which in part is being invested, in an illegal process.

Obviously, and despite, the wish to make this soft, and not being provocative, the Constitutional Court, during the last few days, was finally forced by the Catalonian Government provocation, to order the Spanish Police to execute the necessary steps to block ONLY the websites which make the propaganda of the process. However, the Catalonian Government and also volunteers used .CAT, among many other institutions, to duplicate those websites, once and again.

There is nothing against freedom of speech, there is nothing against .CAT, just making sure that the court orders are fulfilled by all the citizens, including public servants, regardless of the organization where they work. Public servants, individuals working for the Information Society, TLDs or other kind of registries, Service Providers, etc., all have the same obligation to follow the law as the rest of the citizens.

Where is the limit of the freedom of speech in Internet? Do you agree that if I publish a website with information about how to do a robbery at your home, call for volunteers to organize a terrorist attack, or to help me in any unlawful or criminal activity, and there is a court order against that website, this can't be considered as measures to restrict free and open access to Internet?

Censorship can be enforced in many ways. One of those ways is to publish false information and confuse people about the real facts, hiding the reality with lots of extra background noise.

When organizations and persons that have been elected by the Internet community take advantage of their positions to, instead of have objective positions, and not correlate those institutions and enact false accusations and misinformation, we can't anymore trust on those persons and they must resign.

The most open organizations, using their influence in the global information society, can actually execute a censorship action which is even much worse than any restriction to freedom of speech.

There are other relevant facts in this history. Many politicians that have been governing Catalonia for many years are being prosecuted for illegal activities, such as 3-5% commissions in public tenders, using public money for promoting the independence process, and such.

Guess what? Their only way-out is the independence, otherwise, they are going to need to pay for all what they have robbed to the public treasury, and it means money and prison. Is not that curious?

Is not curious that the Catalonian Autonomy is the one that in the last years got more credit from the Central Government? Do you expect they will be able to reimburse it?

Do you think if any of us, disobeys the law the same way, as this process is doing, will be ignored by the authorities, or we will be detained and requested to explain every detail of all the illegal actions in front of a judge?

Or do you expect authorities to ignore every illegal action from all the citizens and then we all get crazy, and we go into an anarchic world?

The Spanish Government has been very prudent, too much probably, as they could have used article 155 of our Constitution to suspend the Catalonian Autonomy, but they decided not to go that way, at least for the time being. This is not a clear demonstration of democracy and freedom of speech?

In Europe, since a long time ago, we are trying to integrate and be stronger. Splitting countries is against that spirit, don't make any sense.

Our community must be smart enough and ignore messages with false or incomplete information. Those messages are even considered apology of sedition, same as if we start creating websites doing apology of terrorism or any other illegal activities.

Let's avoid going on with all this misinformation and I plea to those having only the real facts and complete information to spread the message to avoid others getting confused.

Internet-related institutions must not trust anymore those individuals or organizations who are misinforming the rest of the world. Internet-related institutions must respect the law of democratic countries. Only when it is clearly proven that democracy is not real, we must act, otherwise, we are damaging our own credibility.

Those that have already published false information, must apologize. It is clear that they have got confused because the Catalonian Government and many of their actors in this theatre, have been far noisier than the rest of the community, but it's time to review.
Written by Jordi Palet Martinez, TelecomFollow CircleID on TwitterMore under: Censorship, Domain Names, ICANN, Internet Governance, Law, Policy & Regulation, Regional Registries, Registry Services, Web

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Catalan Referendum Sites Blocked by Court Order

CircleID CircleID: Websites associated with the upcoming referendum in Catalonia are being blocked by ISPs in Spain.

While several of the domain names used by advocates of the Catalan referendum have been seized by authorities others are being blocked by the ISPs in Spain. For those of us outside Spain the blocking has zero impact on us, so we can see the sites without any issue, but for users in Catalonia, ISPs are blocking access. This kind of tactic has been employed most often in the past by rights holders who wanted to stop internet users from accessing torrent trackers such as PirateBay.

It's not impossible to circumvent this kind of block, so more savvy internet users have been able to continue accessing the affected sites by using VPN and proxy services.

The official referendum Twitter account has been dishing out instructions on how to access blocked sites using a variety of VPN and proxy services.

The most effective way for the Spanish government to block access to online content is by seizing the domain(s) completely, which would render VPNs and proxies completely moot. However, they appear to have only been able to do this with .cat domains, as previously mentioned. Most of the sites being used by the referendum campaign have switched to either .eu domains or gTLDs like .com and .fun (Yeah — that struck me as an odd choice too!).

Any domains seized by the Spanish state end up carrying this image:

The DNS records for seized domains seem to be pointing at Akamai IP address space, specifically with their "www" records being pointed to: paginaintervenida.edgesuite.netÍ
Written by Michele Neylon, MD of Blacknight SolutionsFollow CircleID on TwitterMore under: Censorship, Domain Names, Internet Governance, Top-Level Domains

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The Impacts of Hurricanes Harvey, Irma, and Maria on the Internet

CircleID CircleID:

The devastation caused by several storms during the 2017 Atlantic hurricane season has destroyed neighborhoods and taken lives across a number of Caribbean island nations including Texas and Florida in the United States. Senior Director of Internet Research & Analysis at Oracle Dyn Global Business Unit has posted a blog that takes a look at the impacts that the storms have had on the Internet in the affected regions. He writes: "The monitoring and measurement performed by Oracle Dyn allow us to see network availability issues in near-real time. By analyzing BGP data shared by network peers in over 700 locations around the world, as well as traceroutes performed from over 300 locations across the global Internet, we can identify network outages as they occur, and use our geolocation tools to understand where they have the most significant impact. Based on this data, as well as the analysis of data from our authoritative/secondary and open recursive DNS services, we were able to see the impact of Hurricanes Harvey, Irma, Jose, and Maria on Internet connectivity in affected areas. ... Admittedly, graphs showing Internet volatility resulting from hurricane damage in no way compare to the actual physical devastation caused by the storms. However, social media sites and applications, as well as the broader Internet, have come to play a greater role in preparedness, communications, and global dissemination of information, photos, and videos about the impacts of these natural disasters."
Follow CircleID on TwitterMore under: Access Providers, DNS, Networks, Telecom

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What Jamie Dimon Got Wrong About Bitcoin and Tulips; Is Your CPU Mining Bitcoin?

The Frager Factor The Frager Factor: Ethereum co-founder and Mark Cuban put $25M toward Unikrn; Internet giants on the defensive in Washington; Dubai starts testing crewless two-person ‘flying taxis’;  Package delivery startup Doorman is shutting down (Great .co domain MAY be available); Venture firm IVP has raised its biggest fund yet at $1.5 billion; Showtime's Websites May Have Used Your CPU to Mine Cryptocoin While You Were

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End user domain name sales up to $35,000

A chocolatier, comedy bar and orthodontics company bought domain names last week. It’s time for the weekly rundown of end user domain name sales that took place at Sedo over the past week. This list includes only the domain names I was able to discover by viewing Whois records and updated websites, so it’s only […]

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Principles, Factors, and Elements that Promote or Undermine the Outcome of UDRP Cases

CircleID CircleID: Panels adjudicating cybersquatting claims, defenses, and rebuttals under the Uniform Domain Name Dispute Resolution Policy (UDRP) expect parties to prove their contentions, and this means having a working understanding of what this entails. There is, first, a set of fundamental rules or principles — such as pending applications for a mark do not constitute a right, or recognizing unregistered marks as constituting rights under paragraph 4(a)(i) of the Policy; or accepting a prima facie showing that respondent lacks rights or legitimate interests as conclusive under paragraph 4(a)(ii) absent persuasive evidence to the contrary; or use in bad faith is not limited to active websites, paragraph 4(a)(iii). The development of principles was contemplated by the WIPO Final Report, 150(5):

[I]t is desirable that the use of the administrative procedure should lead to the construction of a body of consistent principles that may provide guidance for the future."

This has, in fact, come about.

In addition to principles, there is a set of factors which I like to think of as hinges because ultimately claims, defenses, and rebuttals hinge on them. Factors include strength or weakness of marks and their lexical compositions (dictionary words, descriptive phrases, acronyms); the location of the parties; the timing of the respective acquisitions of domain names and marks. Marks composed of lexical strings that are not particularly associated with complainants cannot possibly be in violation of the Policy. Thus, Blue Star Limited v. Blue Star International, CAC 101582 (ADR.eu August 22, 2017) for descriptive phrases and NTI Cadcenter A/S v. Domain Admin, Ashantiplc Limited, CAC 101591 (ADR.eu September 21, 2017) for random letters. In the case of NTI Complainant claimed a common law right in the three letters but lacked proof of any reputation that would have put Respondent on notice of its right. Establishing a reputation is a factor, a hinge; a party may have a present reputation but none when the domain name was registered.

A third set consists of elements. These are found within the Policy requirements. For example, the domain name has to be identical or confusingly similar to the mark. If it is neither complainant has no standing to complain — Fabricators & Manufacturers Association, International v. NameFind, FA 1728625 (Forum June 1, 2017) (THE FABRICATOR and <fabricator.com>). Other elements include the circumstances spelled out in subparagraphs 4(b)(i — iv) and 4(c)(i — iii) of the Policy. For example, offering the domain name for sale to the mark owner is evidence of abusive registration under subparagraph 4(b)(i) (although it is not bad faith if the complainant approaches respondent to negotiate a sale) while evidence of fair use (as criticism) supports lawful registration under subparagraph 4(c)(iii) of the Policy.

Particularly with factors parties, must recognize what they are for the specific factual matrix of their cases if they are to prevail. Complainants do not succeed by having trademarks (BLUE STAR); and respondents do not forfeit their domain names by defaulting in appearance (Ajnaware Pty Ltd v. Domain Administrator, FA170800 1744102 (Forum September 25, 2017).

I do not mean to suggest that these sets are hermetically sealed; some principles are also factors and factors can also be thought of as elements (even though not specifically demanded in the Policy).

The first UDRP complaint was filed in December 1999, World Wrestling Federation Entertainment, Inc. v. Michael Bosman, D1099-0001 (WIPO January 14, 2000). It is the plainest of plain vanilla cases: the second level domain was identical to Complainant's mark, Respondent (who did not appear) offered to sell the domain name to Complaint, and the proof established cybersquatting. What is memorable about the case is that the Panel ruled that to prevail in a UDRP dispute complainant must prove both registrations in bad faith and use in bad faith. This conjunctive requirement can be thought of as the first principle of domain name jurisprudence, namely that bad faith registration alone is insufficient to support cybersquatting although it can be inferred from bad faith use.

World Wrestling was also plain vanilla in that the mark was well-known and distinctive when Respondent registered the domain name. Cases of this kind represent 90% or more of the UDRP docket; respondents rarely appear, there is no counter-narrative, and the domain names are canceled or transferred. Examples drawn at random are Comerica Bank v. Micheal Ard, D2017-1487 (WIPO September 14, 2017) (COMERICA and <comericacashloans.com>); Ubisoft Entertainment v. Josephine Smith, D2017-1402 (WIPO September 4,2017) (JUST DANCE and <justdancelive.com>)

Moving away from the plain vanilla are disputes in which marks are distinctive but not well-known or, well-know but unregistered. The factors are strength and composition of marks, respective locations of the parties, reputation of the mark when domain name was registered, the kinds of goods or services offered, and the content of the resolving website. In the absence of a strong showing of goodwill and reputation, a respondent's explanation for its acquisition can make a difference to the outcome of the dispute. This is the gist of the Panel's findings in Real Estate Edge, LLC. v. Rodney Campbell, D2017-1366 (WIPO September 5, 2017) (GREATER AUSTIN REALTY and <greateraustinrealty.com>):

As viewed by the Panel, the Complaint does not make out a particularly strong case. The Complainant's service mark does not appear to be especially well-known within Austin, Texas, that both the Complainant and the Respondent inhabit. Moreover, being composed of one geographical and two dictionary terms, the mark is not particularly strong on its own. Furthermore, even though it has established valid service mark rights, the Complainant has presented neither assertions nor any evidence whatsoever of the extent to which it has used the GREATER AUSTIN REALTY mark for business purposes.

The Panel concluded that having proof of these facts is "critical if the Panel is to assess rights and interests in a domain name relative to such a descriptive service mark." Complainants of weak and unregistered marks must show the domain names were registered with them specifically "in mind," which is difficult if the marks are composed of generic and descriptive elements.

The same issues are raised in Altamira Asset Management, S.A. v. Luis G. Mota, D2017-1298 (WIPO September 11, 2017) (ALTAMIRA and <altamirarealestate.com>). The parties reside on different continents (a factor) and there was no evidence the registration was capitalizing on the mark (another factor). The "distance" factor was not considered, but without addressing it Complainant could not possibly prevail.

As long as complainants' marks predate domain name registrations complainants have actionable claims, but none if the marks postdate the registration. These complaints must fail because of the first principle, conjunctive bad faith, and first factor, namely priority. Ajnaware, supra (Respondent did not appear but prevailed); FIBO Consulting, LTD v. MohammadReza FakhrMoghaddam, FA1708001744548 (Forum September 15, 2017) (FIBO and <fibogroup.org>); Shesafe Pty Ltd v. DomainMarket.com, D2017-1330 (WIPO August 22, 2017) (SHESAFE and <shesafe.com>).

Shesafe also illuminates other factors. When Respondent (an investor) registered the domain name Complainant had no market presence, but even it had an earlier use in commerce with a common law mark, infringement of a right depends on the infringer having knowledge of the mark's existence. "Knowledge" or "awareness" of the mark is a critical factor. The Panel held that it could not "discern any basis for finding that the Domain Name was registered in bad faith." On the contrary, it found that "the Domain Name was acquired bona fide by the Respondent as a domain name that might be of value on account of its descriptive elements" (my emphasis).

Before Respondent-investor received the complaint, it was offering the domain name for around $10,000 dollars. Following denial of the complaint, the value of the domain name escalated into the stratosphere as graphically described in a post on DomainGang:

Since the decision, Mike Mann has jacked up the price tenfold, seeking now no less than $94,888 dollars! (Bold in the original).

"Jacking up" the price is only a factor when the registration of the domain name is unlawful, but is not a factor when the domain names is acquired "for its descriptive elements." The situation would have been different if Complainant had proved unregistered rights. That sound you hear is Complainant gnashing its teeth.

It must be a party's first duty to ask itself, what do I have to prove? What factors will a Panel be expecting me to prove? If I don't have a registered mark can I prevail on a common law theory? It is not just "first use" in commerce that has to be proved but reputation. (Complainant in Shesafe did not consider the critical factors so presumably, it had no common law rights).

As marks descend to the weaker end of the classification scale, complainants must work harder on the factors. Dictionary words, alone or combined, and descriptive strings of characters as marks are particularly vulnerable. In Blue Star, supra Complainant did not have the evidence it needed to persuade the Panel that was registered in bad faith. The Panel pointed out that there is "a very wide range of uses of the phrase BLUE STAR in commerce . . . by (it appears) the Respondent, and by many others." Even though Respondent did not appear there was evidence on the resolving website that undercut Complainant's allegations:

[T]he Complainant makes an expansive and not wholly persuasive case regarding the uniqueness of the phrase and the existence of common law rights. The Complainant appears unaware of the great number of other marks containing the text BLUE STAR in a range of industries and trademark classes around the world.

Complainant failed to pay attention to two factors, namely "ubiquity" in the use of an adjectival phrase adopted as a mark and protection of its credibility by making easily refutable statements. The claim for "uniqueness" is undercut by use "in a range of industries and trademark classes around the world." There is no evidence Respondent chose the domain name with Complainant's mark in mind. The Panel denied the complaint on credibility grounds for (among other reasons):

contrary to the assertion of the Complainant, a website is and has been [in] operation at the disputed domain name throughout the period of registration, providing what appears to be accurate information regarding the activities of a company with the same name as that used in the disputed domain name.

I have focused particularly on factors because, as I mention, they are the hinges that determine cybersquatting or lawful registration of domain names. There's a kind of inevitability in the adjudication of disputes, that when the record is silent on proving certain factors, the party that must present them will lose.
Written by Gerald M. Levine, Intellectual Property, Arbitrator/Mediator at Levine Samuel LLPFollow CircleID on TwitterMore under: Cybersquatting, Domain Names, Law, UDRP

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AUCTION RECAP OF SEPTEMBER 25, 2017

A comprehensive look at the final auction prices, closeouts and more from the auction list posted on September 25, 2017. 

If there is an asterisk (*) next to a price, it means that the name was at auction from a private seller (rather than an expiring name) and may have had a reserve.  I’m only showing where the price was when the auction ended, but the name may not have sold if a reserve was in place.

Save Money With Daddy Bulk Domain Registration

Dropcatch and Sedo Names at Auction

WeinerDog.com   Love these little things.

At $69 with 1 hour left

FCOB.com  Another one with great letters.  Closes today and still under $200

Don’t think it hit reserve – sold for $408 on 2/12/17

OAR.com  It’s met reserve so its going to sell yet again.  Been up for sale a lot over the years but always seems to sell

At $35,000 with 1 day left

Vag.net  Next bid should get the VAG

At $510 with 1 day left

Namejet

Top 10 Namejet sales for yesterday as listed on Namebio.

hsv.com $29,200
citymap.com $9,975
reps.com $8,095
opens.com $5,600
87558.com $4,799
consultations.com $3,356
professed.com $3,125
facon.com $2,601
cb315.com $2,500
lessontutor.com $1,700

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