Institute for Internet Policy & Law @ Beijing Normal University

What is the most sensational ICT news in China this week? Of course, it is the War between two animals–Penguin representing Tencent and  Tiger for Qihoo. After sending its 0.6 billion Chinese IM users a “Public Condemnation against Qihoo 360′” via pop-up windows, Tencent, which has been using the logo of two cute-looking penguins, publicly announced that it stops inter-operating with Qihoo’s 360’s newly released security program, Kou Kou Bodyguard. Tencent condemned Qihoo (Chinese name “Magical Tiger”) for hijacking users’ accounts through striping ads attached to QQ and redirecting QQ users to 360 browers. Qihoo that developed from an anti-virus company to the second large security and online assistance program service provider to 0.5 billion Chinese users denied the allegation that Kou Kou Bodyguard was a Trojan program to steal users’ information but has removed the program offline.

The War between  two leading Internet companies have devastated many Internet users, particularly who  had solely relied on these domestic services on IM, chatting, searching and email, etc. Under Tencent’s unilateral announcement, any user who has Qihoo 360 installed on the computer will not be able to login Tencent’s popular IM program QQ. Tencent has sued Qihoo for unfair competition and other claims to Beijing Court. Meanwhile, angry QQ users (especially those who paid fees to Tencent) have gather to bring collective action against Tencent. Ministry of Industry and Information Technology and Ministry of Public Security have summoned both parties for investigation.

For more information, please refer to “QQ-360 Battle Escalates into War” on WSJ.

The case shows the poor legal protection on privacy and personal information for more than 1 billion Internet users in China. It is widely believed that Internet giants are all blatantly detecting, collecting and trading their users’ privacy information for profit. In this case, tens of million of users become the virtual hostage of commercial strategy. Internet companies’ tremendous technical capacity can be a threat of the users’ choice and legitimate interest.

How would Tencent implement its anti-360 campaign? How did it detect and verify whether a user has uninstall Qihoo 360 or not? The answer is that Tencent’s widely used IM client integrates QQ Housekeep (formerly named QQ Doctor) that can automatically scan users’ drive and detect the files and programs installed on users’ computers.  Qihoo 360 had labelled QQ Doctor as a privacy-infringement program but Tencent rebutted that 360 lied for fear of competition in security product market.

In addition, malice competition actions not only directly hurt the consumers but potentially endanger the network security and stability. Civil disputes may deteriorate into cyber-crimes. Common use of cloud computing gives Internet giants “invisible hand” to manipulate, control and imperil billion’s of users. When data, computer and usage are more beyond the control of users, we have good reason to worry who is really in control.

The competent governmental agency, MIIT, finally stepped in the dispute. In an official announcement made on November 21,  both parties were condemned for acts of unfair competition and bad social impacts. Both were required to stop any acts that may damage the legitimate interests of users, stop mutual attacks and apologize to the users. The announcement also asked both to take appropriate make-up measures.  Interestingly, MIIT ordered both to carefully learn relevant laws and regulations and improve their moral construction. Let alone the morality standards that are apparently in doubt, people may wonder what kind of laws and regulations they should “carefully learn”. Obviously, there has no law or regulation to touch a commercial operator’s proactive or aggressive self-defensive actions.

“Domain Name Dispute Resolution and ODR: Asian Perspective” was held on 15 October 2010 in Beijing Shangri-La Hotel New Wing.

The Conference is to  further improve the substantive and procedural rules on domain name dispute resolution, develop relevant theories and practice in terms of online dispute resolution, strengthen the communication and cooperation of theoretical and practical workers in this field and promote the domain name and online dispute resolution services provided by ADNDRC. The conference is organized jointly by CIETAC, Asian Domain Name Dispute Resolution Centre and Hong Kong International Arbitration Centre.

Scores of presentations given by government officials, domestic and foreign scholars, judges, lawyers and representatives from enterprises were listened by a decent number of audience. A lawyer from Hong Kong, a Korean professor and Prof. Hong Xue gave the presentations in English. An ICANN staff from contract compliance department gave a briefings in Chinese.  There were little chances for interactions. Presenters did not even talk with each other. The whole day was long and uninteresting.

Almost the whole morning session, full of empty congratulations, best wishes and formality greetings, was rather boring, until Prof. Hong Xue opened the discussion on substantive issues: UDRP para.4(a)(i). But it was past 12 o’clock, holly time in Beijing for lunch. People got impatient to think about whether laches of a complainant could be a defense under UDRP. Okay, everyone then went to lunch.

Afternoon session was not much better than the morning. People on podium seemed talking to themselves. Audience were tired. One presenter proposed to eliminate “bad faith” condition from DRP. Well, it is new but destructive.

Finally I fairly doubted the conference reached the goal it advertised “”Wonderful speeches delivered by some renowned judges, scholars and lawyers during the conference on several significant topics, such as procedural issues of domain name dispute resolution, the People’s Courts’ basic principles and practice on hearing of domain name dispute, application of the substantive conditions justifying complaints under UDRP, dispute resolution in e-commerce and online arbitration and setting up online arbitration system in China.”

I spent a hectic week (September 13-17) at Vilnius, Lithuania for the 5th Internet Governance Forum. Although the local food is not very impressive to me, I got sufficient food for thought.

On Day One, I rushed to two sessions to give presentations. One was “Setting the Scene” in the Main Room. I’m the author on Chapter Diversity for “official” IGF book “Creating Opportunities for All.” Another was the workshop organized by Council of Europe on Framework of General Principles of Internet Governance, which is a very ambitious project that may have to be handled at UN forum.

On Day Two, I presented at a workshop “Internet Governance and Youth”, along with a critic lady from Pirate Party and a couple of young people. Frankly I don’t believe young people need to be arrogant to the “old” for establishment their own identity. Okay that session was not interesting. In the afternoon, I was the remote moderator for the workshop “Development Agenda.” An irresponsible commentator complained that he could not tweet the session but he lied for he did not even login the webex platform. At night, Prof. Drake and I went to UNESCO reception for a drink.

Day Three was comparatively relaxing to me. I went to the Dynamic Coalition’s workshop at the beginning and SSIG workshop before lunch. In the afternoon, I went to Russian IGF session and Intermediary Liability workshop before joining NomCom outreach. At night, around seven scholars were invited to join UNESCO dinner for a strategic talk. Everyone was so busy with talking or taking notes that we did not remember what we ate.

Last Day began with a Chinese workshop on open access to scientific data and library information. I later joined APrIGF report session. After having lunch with CNNIC friend, I went to city TLD workshop and had interesting dialogue on the large panel. The closing ceremony seemed endless. Prof. Ang, Mr. Tan and I ran into to heavy rain to catch the bus to go to the city for dinner.

On departure Day, Mr. Tan and I went to KGB museum and felt extremely depressed by the execution photos and other old files. Later we felt better in an open market in front of the City Hall. That’s my week by Baltic Sea and my second stay in the beautiful city. Nice to go home anyway.

Isn’t weird that Internet governance suddenly becomes a hot topic of this place? People who have no background on research and education are all of a sudden upgraded to the position of top experts or advisers. Billions of state funds find the new way to enter into corrupt pockets. New so-called excellent courses or training programs are set up. The reason, obviously, that more useful idiots are needed.

I was so amused when attending an absolutely boring window-dressing meeting to assess an irrelevant university’s newly born LLM program. Apart from listening from a couple of colorful-nail middle-age women’s suggestions to the meeting host on how to fool the assessment criteria, a seemingly half-drunk man intervened that governance means solely and completely governmental administration and shall be categorized as administrative law. The meeting hosts who applied to run the LLM program and self-claimed experts on IG nodded with greatest consent. I was so overwhelmed at that moment. I might be Alice in the wonderland.

I went through the two strawman proposals carefully and found that many of the ALAC’s suggestions are properly reflected.

I’ve the following thoughts for the community to consider.

1. With respect to the Strawman proposal on Clearing House, I can see significant improvements, such as the item on “identical match”, which is basically consistent at-large discussions.

But the following issue still concerns me:

“Nationally Registered Marks, from all jurisdictions, including countries where there is no substantive evaluation, and no common law rights except for court validated common law marks (with appropriate fees for validation).”

When comparing nationally registered marks and common law marks, I mentioned that the advantage of adopting “nationally registered marks” is that they have clear specifications (territory, presentation of the mark, classes of goods or services, term of protection) shown on the registration certificates and can easily be tabled into the database.

The common law rights are comparatively ambiguous. If a court validation can remedy their ambiguity, then it is not the “appropriate fees” but  clear decisions with the reasons of validation of the marks, from which we can see the goods or services on which the marks are used, duration of use and territorial protection (nationally or only locally).

I suggest change into “except for court validated common law marks (with appropriate reasons for validation)”

2. With respect to the URS, I can see improvements, such as 20-day notice, applicable to registered marks only and specially “answers after default.”

On the other hand, I have still a couple questions and concerns.

a) Mandatory URS

Although it seems consensually agreed by all the stakeholder, I still believe it should be best-practice rather than mandatory.

b) Element of complaint & evaluation

Interestingly, Rule 56 of U.S. Fed. Rule of Civil Procedure on summary judgment is cited as the standard of evaluation. Summary judgments are not common in civil proceedings of all jurisdictions, It is puzzling to adopt such an American-center approach. In addition, evaluation standards  involve not only procedures but substances. Does Citation of Rule 56 of U.S. Fed. Rule of Civil Procedure mean that the Examiners of a service provider will only make decisions procedurally?

Previously, the standards were focusing on “clear-cut” cybersquatting cases, which are inherently and inevitably controversial but at least combine both procedural and substantive elements. I therefore suggest the “standards” be resumed to “clear-cut cases” subject to thoughtful definition.

In addition, I wonder the feasibility of applying Rule 56 of U.S. Fed. Rule of Civil Procedure. The prerequisite of summary judgment proceeding is that there is “no genuine issue for trial” so that the court may quickly move to judgment based on both parties’ submissions (even without supporting affidavits). However, there will be several issues or material facts that need to be verified in URS. Most obviously, how would the examiner assess the elements of complaints (domain name is identical or confusingly similar to a mark in which Complainant holds a valid registration issued by a jursidction that conducts a substantive examination of trademark applications prior to registration and The Registrant has no legitimate right or interest to the domain name; and/or the the domain was registered and is being used in bad faith) in a contested case?

c) Appeal

I don’t understand the complicated appeal system. In previous version, a URS decision can be appealed externally to an Ombudsman or a court. Now is there appealing system available internally? Will it be maintained by the same service provider?

After a decision in any case (default or contested), either party has a right to seek a denovo appeal within the URS process for a reasonable fee to cover the costs of the appeal.

Since we have only limited time to respond, I tried to write down all I thought about for further modifications and criticisms.