[council] RE: draft resolution on registrar to registrar handling of DM holder requests to change registrars

["Shapiro, Ted" <Ted_Shapiro@mpaa.org>]

Dear pNC,

I am resending my earlier message and including the points raised during
today's teleconference this afternoon, as requested. Overall there was
consensus in the pNC that this issue already had significant consensus
behind it. I note that this draft model protocol has been endorsed by the IP
constituency and there was general agreement in pNC on the principles to be
achieved. The IPC feels that the exigent circumstances confronting us (test
registrars coming on line) and the ICANN by-laws rendered this issue worthy
for consideration despite the fact that the DNSO process had not been
followed to the letter. However, the pNC felt that there were some technical
concerns and that the draft model protocol should be further refined before
retabling the issue for the July 27 teleconference. The main points raised
during today's discussion were as follows:

Ken Stubbs: Concern over the last paragraph relating to sworn statements due
to the varying national legal regimes involved. Concern that the methodology
could constitute an excessive burden for registrars.

	Answer from Ted: Noted that the reference to applicable law was
designed to take into account the existing of varying national legal
regimes. Agreed that we would need to ensure that this was not overly
burdensome.

Bill Semich: Concern that this was "reverse cyberpiracy" and simply taking
on board an existing NSI policy. Bill also asked for a further two or three
sentences summarizing the draft model protocol .

	Answer from Ted: Noted that this was not "reverse cyberpiracy" nor
was it an effort to take adopt a NSI policy. Instead, it was meant to be a
significant refinement to deal with a specific, increasing problem.

David Johnson: Noted that this was a good example of an activity where there
was already widespread agreement. Answered Bill Semich's question with
respect to summarizing the proposal by noting that it was designed to
prevent forum shopping by prohibiting DM holders from switching to another
registrar when a dispute resolution policy has been invoked against them. He
also suggested that there be a further report on the level of consensus at
the next teleconference.

	Answer from Ted: Agreed that if members of the pNC were not ready to
vote that further refinements and a gaging of consensus could be undertaken
before the next teleconference.

Nii Quaynor: Queried whether this draft model protocol would be a further
way for big players to beat up on smaller players.

	Answer from Ted: Noted that this model protocol would also benefit
smaller players. 

It was decided that a working group (Ken Stubbs, Ted Shapiro and David
Johnson) prepare this issue for the next teleconference.

This is based on my best recollection (and in some cases I have added
further remarks), please feel free to correct me if I have misquoted or
misrepresented anything.

Thank you for your consideration of this issue.

Best regards, TED
> -----Original Message-----
> From:	Shapiro, Ted 
> Sent:	Monday, July 12, 1999 2:25 PM
> To:	'[council]'
> Cc:	'Majordomo'
> Subject:	draft resolution on registrar to registrar handling of DM
> holder requests to change registrars
> 
> I attach for the purposes of discussion of agenda item 2b concerning the
> registration or transfer of domain names subject to dispute resolution
> proceedings, a further modified and clarified version of the draft
> resolution for today's teleconference . I realize that this is rather late
> in the game, but due to the exigency of the situation, we felt it was
> justified. The model protocol was formulated by members of the IP
> constituency over the weekend in an effort to be ready for today's
> meeting. The crux of the resolution remains the same. I attach in word and
> html as well as in the body of the e-mail.
>  << File: prot1.htm >>  << File: prot1.doc >> 
> MODEL PROTOCOL FOR REGISTRAR TO REGISTRAR HANDLING OF REQUESTS BY A DOMAIN
> NAME HOLDER TO CHANGE REGISTRARS UPON NOTICE OF A POSSIBLE CLAIM
> 
> 	Certain test bed registrars are already operational and more are
> rapidly coming on line with each passing week.
> 
> 	There is presently evidence of forum shopping for registrars with
> different dispute policies by domain name holders for improper purposes,
> including, but not limited to seeking to avoid the assertion of rights by
> a third party to that same domain name or the compliance with a cease and
> desist letter, or to avoid the initiation of a dispute policy by the
> registrar from which the domain name holder is seeking transfer, or the
> resolution of a properly invoked dispute proceeding under the policy of
> the registrar from which the domain name holder is seeking transfer.
> 
> The existing dispute policies presently in place and policies being
> discussed do not address any protocol for registrar to registrar handling
> of requests by a domain name registrant to change registrars upon notice
> of a possible claim.
> 
> 	ICANN should be able to make decisions without having to wait for
> quarterly meetings and a decision on this proposed model protocol is
> necessary to discourage ongoing undesired forum shopping.
> 
> 	ICANN already has made a decision that registrars must have a
> dispute policy in place before they can become operational.  By resolution
> in Berlin, ICANN has encouraged the test bed registrars to formulate a
> model policy and is providing assistance to them in this regard. 
> 
> 	The Intellectual Property Constituency therefore offers the
> following proposed model protocol for registrar to registrar handling of
> transfers for second level domain name registration records.  We believe
> that this protocol would assist in protecting intellectual property rights
> holders.  Importantly, the proposed protocol does not call for hindering
> the use of the domain name by the registrant assuming the dispute policy
> of their existing registrar so permits.  The proposed protocol also
> attempts to address the time gap between the receipt of a cease and desist
> letter by the domain name holder and the invocation of a registrar's
> dispute policy (assuming that policy does not provide for the placing of a
> hold on the name).  During this time gap, a domain name holder can seek to
> change registrars in order to avoid the invocation of its initial
> register's dispute policy.
> 
> Finally, if the domain name holder seeking the transfer has been
> improperly blocked by a third party from transferring registrars, that
> domain name holder will not be precluded from availing themselves of any
> and all appropriate remedies and actions.
> 
> 	Once a registrar's dispute policy has been properly invoked and the
> dispute is pending and remains unresolved, the registration of second
> level domain name registration record shall not transfer that domain name
> to another registrar until the dispute is properly resolved.
> 
> 	No registrar shall accept from any other registrar the transfer of a
> second level domain name registration record without receiving from the
> registrant seeking to transfer the domain name a sworn declaration or
> affirmation, under penalties of perjury in the applicable law of the
> jurisdiction where taken, that the domain name holder seeking such
> transfer has not received a cease and desist letter or notice of dispute
> concerning the domain name sought to be transferred from any third party.