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.