A client of Epik recently pointed out to me that I have apparently annoyed the people at Legitscript. They referenced this post that appears on the Legitscript blog:
Since their attorneys will likely advise them to take it down quickly, I kept a copy should anyone need to see it later on.
Up until today, I had not even noticed their blog post. Now, having seen it, as I am not so easily bullied or intimidated, I herewith post an open letter to both Legiscript and to their sponsors.
To start, here is the full text of my ICANN complaint response:
My official response to ICANN’s complaint from Legitscript – Case ARO-840-05646:
Further to your Notice, I am getting back to you with our findings.
Per your request, I am attaching the full transcript of the correspondence with Mr. Horton of Legitscript related to the domain names in question. This conversation is logged in our online support ticketing system and was handled by a staff member, Matheus Leite.
In the meantime, in the wake of this escalation to ICANN, I have evaluated the content of Mr Horton’s claims. We believe there is sufficient debate on the standing of Legitscript to warrant taking a light hand when it comes to the disposition of the sovereign property of registrants. While we certainly would never condone distribution of “fake pills”, we have no way of adjudicating whether or not the identified domains are in fact engaged in such a practice. Unlike child pornography, where the assessment is obvious and enforcement is swift, online pharmacies require professional evaluation by a competent expert.
As for whether or not Legitscript is competent, a cursory review of the history of the Legitscript entity reveals ample evidence that the group is a proxy for US pharmacy interests, and that they use heavy-handed influence tactics without regard to due process through a court of law where the registrant’s case can be tried and the evidence examined by competent persons who are subject to providing due process. Here is one of many examples:
As a matter of policy, Epik does not host any of these sites. The domains in question are owned by 4 registrants, none of which are affiliated with Epik in any way other than as customers of the registrar. These registrants do receive WDRP notices per the RAA although they use a 3rd party privacy proxy.
As for RAA compliance, we are confident that we are in full compliance of 3.18 of the 2013 RAA:
3.18.1 Registrar shall maintain an abuse contact to receive reports of abuse involving Registered Names sponsored by Registrar, including reports of Illegal Activity. Registrar shall publish an email address to receive such reports on the home page of Registrar’s website (or in another standardized place that may be designated by ICANN from time to time). Registrar shall take reasonable and prompt steps to investigate and respond appropriately to any reports of abuse.
3.18.2 Registrar shall establish and maintain a dedicated abuse point of contact, including a dedicated email address and telephone number that is monitored 24 hours a day, seven days a week, to receive reports of Illegal Activity by law enforcement, consumer protection, quasi-governmental or other similar authorities designated from time to time by the national or territorial government of the jurisdiction in which the Registrar is established or maintains a physical office. Well-founded reports of Illegal Activity submitted to these contacts must be reviewed within 24 hours by an individual who is empowered by Registrar to take necessary and appropriate actions in response to the report. In responding to any such reports, Registrar will not be required to take any action in contravention of applicable law.
3.18.3 Registrar shall publish on its website a description of its procedures for the receipt, handling, and tracking of abuse reports. Registrar shall document its receipt of and response to all such reports. Registrar shall maintain the records related to such reports for the shorter of two (2) years or the longest period permitted by applicable law, and during such period, shall provide such records to ICANN upon reasonable notice.
As you can see from the attached correspondence, the complainant received a prompt reply.
There is ample evidence in this case, and from observations from similar cases, that Legitscript wishes to serve as jury and executioner without being subject to due process.
As we are not in a position to adjudicate whether or not any of the 4 registrants are engaged in an illegal activity, we have referred the complainant to the court system which can adjudicate in these matters.
In the meantime, after reviewing the list of alleged abuse domains, we have taken the domain myxanaxpills.com offline as this domain trespasses on a registered trademark, and is a violation of Epik’s published terms of service. To secure the domain, the TM holder (not the complainant) should pursue UDRP, arbitration or court order.
We will be happy to promptly respond to any and all correspondence from ICANN on this matter. In the event of an adjudicated outcome from a recognized court we will be happy to comply with any takedown request.
In the meantime, we ask ICANN to kindly request the complainant to secure a judgement in a competent court.
The case was closed by ICANN on March 21, 2017.
Now, let me address the blog commentary.
(1) I do genuinely care about people’s wellbeing. My wife is a physician with a successful medical clinic, Naturomedica.com, on the eastside of Seattle. I am also an avid student of health issues and am generally vigilant to matters of personal health. I am rarely sick, avoid vaccines, and rarely take a pill other than nutritional supplements from reputable sources.
(2) I have no way to gauge who is involved in selling genuine therapeutics and who is not. The supplement industry has the same issue where there is much in the way of supplements sold with questionable efficacy. I imagine that businesses that engage in such, will not be in business for long. Caveat emptor.
(3) We are a registrar for relatively few of these types of domains. As far as I know, we don’t host pharmacy sites. As such, this is not about money. It is actually about principles. In particular, it is about due process.
(4) My issue with Legitscript is that they are more than likely serving as a proxy for big pharma They are routinely engaging in bullying tactics, moral suasion and false presumption of guilt.
To be clear, I do genuinely believe that the world does need a qualified global procedure for prosecuting fake pills. Last month I met with the executive team of the World Chambers Federation and ICC International Court of Arbitration, albeit this was for DigitalTown.com, the other company I lead as CEO. Since WIPO does not adjudicate decisions on fake pills, perhaps another entity should. That entity should be competent to test for efficacy of therapeutic claims and also be competent for evaluating whether a branded good is in fact an imposter.
In the meantime, here is what I advise to domain industry stakeholders:
(1) Encourage the ICA to show backbone. Yes, Phil Corwin, this means you. I do love your work, but you need to guide the stakeholders in achieving due process.
(2) Invite and encourage the registrar industry to fight fire with fire. May truth and due process prevail. Registrars have a duty to protect legal registrants. It comes with the job.
(3) When the class action starts for Legiscript, please contact me. I have put them on notice that I object to their false accusation and public presumption of guilt without due process. They are unaccountable thugs.
And I close with a thank you to ICANN for serving as stewards of the industry. While your ongoing interrogatories can at times drive me up the wall, I believe you did get this one right. See you in Madrid for GDD Summit.