More than once, Domain Tools’ domain history has proven quite useful to me in domain disputes. It is always nice to be able to show a panel that the respondent is lying about the date of acquisition of a domain name — especially since the date of each transfer is considered to be a “new registration” under the UDRP. See this post (and scroll down to “Relation Back of Rights”).
A few weeks ago, word leaked out on the International Trademark Association list serv that Domain Tools was bought by a domain monetization company. A DMC is a company that turns un-used domains into pay-per-click sites. I’m not a big fan of them, as is obvious from this prior post. In theory, they are fine – they turn unused web domains into money-making enterprises. Unfortunately, in practice they encourage people to hoard domains, encourage domain tasting, and make the internet less navigable and more annoying.
When word hit the street that a DMC bought Domain Tools, there were some gasps of concern and a pretty spirited argument about what this meant for the future. In particular, cybersquatter defense attorneys trotted out the pitchforks and torches to burn one particular attorney, Marc Trachtenberg, (hereinafter, “Mr.T”) at the stake for his suggestion that this development did not bode well.
I’m glad that Mr.T survived, because it did not take long for him to be proven correct.
Now that Domain Tools is owned by a DMC, Domain Tools has a nifty new feature – Domain History Blocking. This little number is tailor made for those who just can’t seem to prevail when the facts come to light. From the Domain Tools website:
Domain History Blocking
Domain Tools offers Domain History Blocking for the purpose of domain sales or other short term purposes. The rate is $10.00 per domain name per day. (source)
Who wants to bet that “other short term purposes” will include “making sure that complainants in UDRP proceedings can’t prove when a domain was acquired.” Sort of the way that respondents figured out that the internet archive was a good tool to show bad faith use, so they started using robots.txt to get rid of the evidence.
Fortunately, it seems that some panelists interpret destroying evidence as “bad faith.” A little while back, a panel said that use of the robots.txt file was evidence of bad faith without a darn good explanation. (blogged here) Lets hope that UDRP panelists look at this kind of evidence-suppression the same way.
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The Legal Satyricon 
Marc,
I don’t consider it to be “evidence-suppression” if an attorney or law firm does not want someone to be able to determine the history of escrow transactions in which the firm has engaged, or for third parties to be able to use registration history for competitive intelligence concerning what domain names the firm has acquired for its clients.
On the subject of robots.txt, it’s interesting that the context in which it was mentioned, the ifranchise.com dispute, was resolved in favor of the domain registrant.
The issue was not briefed in the disputes in which it has been mentioned, and the robots.txt situation is a stellar example of the ignorant hubris of UDRP panelists. What neither of them realizes, because they assume they know everything and didn’t bother to ask, is that many advertising feed contracts include a specific provision forbidding the domain registrant from engaging in or permitting a number of acts – including long-term caching or archiving of web pages on which advertisements are displayed.
What these panelists assume is that the rest of the world, including commercial contracts, are supposed to conform to their personal expectations of how things should work. The fact is that the advertising feed providers do not want caching or long term page storage to be done, because the advertising results are based on current bids. The second factor is that domain registrants will be penalized for not blocking spiders and robots, because generation of automated traffic is also forbidden by the advertising contracts. Accordingly, a domain registrant who does not block robot traffic – including the Internet Archive agent – will be financially penalized and suspected of inducing artificial traffic.
But instead of attempting to understand the contractual context, panelists like Donahey and Bernstein merely seek to impose their uninformed views on domain registrants, and to say that in order to act in “good faith”, those domain registrants must engage in breach of contract.
No, breach of contract is not good faith behavior, but Donahey and Bernstein are simply clueless about the relevant commercial requirements behind a practice against which they simply have a personal bias.
It seems to me that Donahey and Bernstein left the door open to “good explanations” for why the robots.txt file was used — and by extension, I would imagine that a “good explanation” for the use of the domain history blocking function would be accepted as well.
Furthermore, if you think that this is “hubris,” on the part of Donahey and Bernstein, then what of Mr. Nelson Diaz? Diaz signed on to that opinion too.
It is far from “hubris” to expect a participant in a dispute to have a good explanation for purging a source of good evidence that would answer most of the questions to be resolved in that dispute.
The scenarios you describe — if they ever actually existed — seem like they would be easy to back up.
No, it is not far from hubris at all.
The hubris arises from the Panel raising an issue on its own which was not addressed by either party in the briefs, and then assuming that there was not an explanation.
If you have a question, then you ask for an answer. It takes a certain amount of pride-inspired ignorance to assume one knows it all.
In how many cases, Marc, do you expect a judge to wander off on his own evidentiary fact-finding expedition, and not ask the parties about what that judge finds?
What’s funny is that Bernstein cites this dicta in a later case as “strong evidence of bad faith.” That’s how uninformed musings become embedded as “principles”.
So, let me see if I understand you, Marc. Your client, the XYZ Company, has won a domain name in a UDRP dispute from a cybersquatter who was using the domain name for porn. In order to maintain the domain name in good faith, your client is required not to use robots.txt to block the old porn site from showing up in the Archive? Your client, and every domain registrant on the planet, is further required to grant the Internet Archive a free and perpetual right to bandwidth, and to the storage, reproduction and display of copyrighted material? Nonsense.
I am not obligated to provide you, Marc, with a list of domain names that I have ever registered for a client or held during a structured transaction, and just because DomainTools has been squirreling away data about me for years does not provide you with a right to it.
Incidentally, Marc, the really sophisticated cybersquatters have already figured out a loophole in the way that archive.org handles active-content pages. If the page is php-driven, then I can make an “archive” page from three years ago say whatever I want it too, and I don’t think Donahey grasps that fact either.
John, this is what the arbitrators are supposed to do — they are supposed to do independent research.
And yet again, your example firmly fits within the rule laid down by Diaz, Donahey, and Bernstein. If my client did that, I’d be able to produce that explanation. You’re reading the case as if it said that use of “robots.txt” is per se bad faith.
I understand that this industry pays your bills, but come on… this is hurting your credibility.
The rule is simple. Panelists know that this trove of evidence exists. Some cybersquatters purge that evidence so that it won’t be used against them. Other people purge the evidence for good reasons. If you purge the evidence, you had better be able to provide a good explanation for it.
What is so difficult to understand / wrong with that?
Actually, there is a considerable difference of opinion on whether UDRP panelists are to conduct their own research, and it is clear that you are not aware of Bernstein citing to that decision and saying that, yes, it is essentially per se bad faith. You further don’t understand that what appears in the archive can be manipulated when the underlying content is actively generated by the server. Whether you find me credible on that point or not, I know for a fact that it can be, and to rely on archive “evidence” without inquiry as to its accuracy is simply parading one’s own ignorance of how the archive deals with active content. It’s not a magic black box that is always accurate.
There are UDRP panelists who have taken the position that it is not proper for the panel to decide the case on materials other than those filed by the parties. You think those panelists are full of crap, and you are entitled to your opinion.
But I am not going to agree to the principle that you are entitled to historical records of my transactions with anyone with whom I do business. That sort of thinking belongs in the former East Germany.
No, my bills are not paid by the surveillance industry, nor by a firm such as Ladas which would state, in a sworn document, that “meterman” is not a word.
You don’t like the way DomainTools runs its business and that’s fine. But this is a capitalist economy, Marc. Run your own domain service as you see fit. Whining about whether or not you are able to find out that I registered a domain name on behalf of my church, and prying into my private religious affiliations, is none of your damned business.
John, you’ve come here for a discussion turned it into a hissy fit.
Yes, the panelists like Diane Cabell and David Sorkin, both of whom are complete disgraces (and who make a nice little supplemental income from being selected by the cybersquatter bar) take the position that they shouldn’t do any independent thinking.
The UDRP pretty clearly gives arbitrators (like all arbitration proceedings) the power and the responsibility to think.
Perhaps the archive can be manipulated. Then a party should bring that up. Your argument seems to be that if evidence could be shredded, then there is nothing wrong with burning it. There may be circumstances when the archive has been manipulated — I’ve never seen it. I will accept that it can be done – but then you could simply argue that the evidence presented was manipulated.
It seems awfully funny that a guy who has such a problem with the historical records of what appeared on a website that he would resort to the infantile “its like East Germany” rhetorical device would not have robots.txt on his own website.
http://web.archive.org/web/*/http://www.johnberryhill.com – cut and paste that into your browser.
Yes, Domain Tools can run its service any way it wants. This new measure, however, proves Marc Trachtenberg correct. Your little hissy fit is completely illogical, irrational, and obviously stems from frustration over something that has nothing to do with this post or this subject.
The site listed here is not a “my site” but one of mine which I own but I need to find out the history of my dns name server switching, dates to be exact. I only need this information once on a handful of my domains, and the only place I can find to do this is with Domain Tools which is costly. I need this information to prove to my registrar I was overcharged, that is all. I can’t believe we can’t get the history on our domain. Can you give me some direction? thanks a lot, Carolyn