Thursday, March 01, 2012

The Wayward ACPA Part 11: “The Courts Do Not Apply a Mechanistic Scorecard”

Looking over 11 years of AntiCybersquatting Consumer Protection Act (ACPA) caselaw, I can now test how the courts have wandered astray with their decisions. In my last post, I once again hypothesized about the error of the courts ways --- in a way that turned out to not be so true.

But this time, this time is different. The reason this time is different is because it aint my conspiracy theory; it’s the courts.

As we went over a few posts ago, the courts must go over 9 factors to determine if the Domain Name Owner (DNO) has bad faith. Courts protest the notion that they go through a rote process, churning through the factors, awarding points to the parties, and then tallying up the scores. They claim that they are following Congress' directive to engage in a thoughtful consideration of the unique factors of individual cases, and that the 9 factors are just guidance.

But they’re lying.

In every case the courts allotted points for each individual factor and the party with the most points wins. Well, okay, there were two cases where the party with the highest score lost; both were cyber-griping cases where the actions of the DNO fell under the Safe Harbor Provision's fair use element. And there was one other case where the prevailing party had a tie score with the, um, devailing??? party. 


In the 67 other cases (or in 96% of cases), if you had the high score, you won. Simply math. So much for the “it’s not a scorecard” theory.

Next: Some Curious Results

PS: Speaking of scorecards.... Baseball starts in 2 days!  AH, Spring! 
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