[ga] com/net/org versus proposed .com agreement

[Alexander Svensson <alexander@svensson.de>]

Changes between current .com/.net/.org agreement
and proposed new .com agreement (section numbers
refer to the new proposal)

______________________________________________________
I. Definitions:
- I.1. "Consensus Policies" defined as "specifications
  or policies" (prev. only "policies")

- I.1.C. Consensus Policies have to be necessary to
  "maintain the operational stability of Registry Services,
  the DNS or the Internet" (prev. "the stability of the
  Internet or the operation of the domain name system").
  Renewal of temporary Consensus Policy confirmation
  every 90 days, reaffirmed for not more than one year
  (prev. every 45 days; reaffirmed for max. 180 days)

- I.1.E. New section: Registry operator has "reasonable 
  period of time, not to exceed four months" for 
  implementation of policy

- I.6. Definition of "Registered Name" (the name the
  registry is dealing with, be it second-level as in
  example.com or third-level as in john.smith.name)

- I.7. "Registry data" definition now uses the term
  "Registry Services"

- I.8. New definition "Registry Database"

- I.9. "Registry Services" now includes "dissemination of
  contact and other information" for domains in the TLD
  "and such other services required by ICANN through the
  establishment of Consensus Policies"; does not include
  "the provision of name service for a domain used by a
  single entity under a Registered Name"
______________________________________________________
II. Agreements:
- II.5. New section "Use of ICANN name" license

- II.6. Modified "Protection from Burdens of Compliance
  With ICANN Policies": ICANN shall indemnify, "defend" (new),
  and hold harmless Registry Operator from and against
  claims, damages, liabilities, costs, and expenses,
  "including reasonable legal fees and expenses" (new),
  arising from compliance with an ICANN specification or
  policy -- unless (new) "it was possible for Registry
  Operator to comply in a manner by which the claims,
  damages, or liabilities would not arise". Additionally,
  ICANN may elect to choose an insurance solution.

- II.7. *MAJOR CHANGE*: "Registry-Level Financial Support
  of ICANN" uses the same model as in the proposed
  unsponsored TLD agreements. There is a fixed registry
  fee and a variable registry fee, both have a price cap
  (maximum payment by registry) which automatically increases
  by 15% per annum. The fixed fee cap shall be $25,000 per
  quarter, the variable fee cap $3,500,000 per year (both
  figures for Jun-02). The "old" agreement had a clause that
  all payments above $250,000 had to be approved by the
  registry (de-facto price cap).

- II.8. New section: Registry operate provides a monthly
  report on operation of the registry.

- II.9. Data escrow: The "old" agreement has a section about
  the release of data held in escrow (third party data
  depository) to ICANN or to the US Department of Commerce
  which the proposed new agreement doesn't have.

- II.11.A. Whois access: The specifications for Whois access
  are set forth in an Appendix (the old agreement specified
  the data elements directly). Now, the registry operator
  may request additional data elements, "in which event ICANN
  shall act to supplement the specification in a reasonable
  manner within a reasonable time."

- II.11.B. Temporary limit to Whois access: The initial time
  period is set a five (prev. three) business days.

- II.11.C. Use of Whois data: Now "Registry Operator shall not
  impose terms and conditions on use of the data provided
  except as permitted by policy established by ICANN".
  Use for commercial soliciations by e-mail, telephone or fax
  and "high volume, automated, electronic processes that send
  queries or data to the systems of Registry" are expressly
  not allowed.

- II.11.E. Bulk access to registry data: The registry operator
  provides public bulk access to registry data and bulk access for
  ICANN itself. In both cases, the specifications can be changed
  by Consensus Policies.

- II.13. The "Limitation of Liability" section now includes
  specific monetary liability limits and a new and longer
  disclaimer IN CAPITAL LETTERS :)

- II.16.C/D/E New reasons for terminating the agreement are
  serious offenses related to financial activities by the
  registry operator or its officers/director as well as
  bankruptcy and insolvency.

- II.18.B. The "old" agreement provided that if there was no
  progress towards competing registries in reasonable time,
  the Cooperative Agreement between NSI and Department of
  Commerce should replace that agreement.

- II.19/20. The "old" agreement refers to the Registry Service
  Level Agreement and how it will be established (which it
  is now).

- II.21. Bulk access to zone files: There is now a differentation
  between zone file bulk access to third parties and to ICANN
  (as in II.11.E)

- II.22. *MAJOR CHANGE*: Price for Registry Services.
  "Old" agreement: The prices for registrars are as set forth
  in the Registrar License and Agreement. They "shall be increased"
  "to reflect demonstrated increases in the net costs of operating
  the registry" arising from ICANN policies or specifially applicable
  legislation "to ensure that NSI recovers such costs and a
  reasonable profit thereon".
  Proposed new agreement: Registry Operator may revise the prices
  provided they don't exceed those set forth in Appendix G.
  [However, as far as I know, this Appendix G has not yet been 
  published, or has it?]

- II.23.A. ICANN-accredited registrars shall have equivalent access
  not only to the shared registration system (old version), but
  to all Registry Services (new).

- II.23.C/D. *MAJOR CHANGE*: Registry-registrar separation.
  "Old" agreement: NSI must ensure that "revenues and assets of the
  registry are not utilized to advantage NSI's registrar activities to
  the detriment of other registrars".
  Proposed new agreement: Registry operator shall not act as a
  registrar in .com, but this "shall not preclude an affiliate
  (including wholly-owned subsidiaries) of Registry Operator from acting
  as a registrar", provided "that the revenues and assets of Registry
  Operator are not utilized to advantage registrars that are affiliated
  with Registry Operator to the detriment of other ICANN-accredited
  registrars. For purposes of this Subsection 23(D), funds distributed
  to debt or equity participants in Registry Operator shall no longer be
  deemed revenues and assets of Registry Operator once they are
  distributed."

- II.24. New section: Registration of (not more than 5000) domain names
  for the registry operator's own use, registration of domain names for
  the registry operator's own use through a registrar, registration of
  domain names for use by ICANN and other organizations responsible for
  coordination of the Internet's infrastructure.

- II.25. *MAJOR CHANGE*: Successor Registry/Subsequent Agreement.
  "Old" agreement: ICANN shall adopt "an open, transparent procedure for
  designating a Successor Registry" and "NSI or its assignee shall be
  eligible to serve as the Successor Registry".
  Proposed new agreement: Registry operator submits a renewal proposal.
  "Registry Operator shall be awarded a four-year renewal term unless
  ICANN demonstrates that:
      (a) Registry Operator is in material breach of this
          Registry Agreement,
      (b) Registry Operator has not provided and will not provide a
          substantial service to the Internet community in its
          performance under this Registry Agreement,
      (c) Registry Operator is not qualified to operate the Registry
          TLD during the renewal term, or
      (d) the maximum price for initial and renewal registrations
          proposed in the Renewal Proposal exceeds the price permitted
          under Section 22 of this Registry Agreement."

- *MAJOR CHANGE*: (old II.23) Expiration of Agreement.
  "The Expiration Date shall be four years after the Effective Date,
  unless extended as provided below." (Which means 2003)
  "In the event that NSI completes the legal separation of ownership
  of its Registry Services business from its registrar business by
  divesting all the assets and operations of one of those businesses
  within 18 months after Effective Date" (which means May 2001) "to
  an unaffiliated third party that enters an agreement enforceable
  by ICANN and the Department of Commerce (i) not to be both a
  registry and a registrar in the Registry TLDs, and (ii) not to
  control, own or have as an affiliate any individual(s) or entity(ies)
  that, collectively, act as both a registry and a registrar in the
  Registry TLDs, the Expiration Date shall be extended for an additional
  four years, resulting in a total term of eight years." (Which means
  2007). The terms "unaffiliated third party" and "control" are then
  defined. There is no such clause in the proposed new agreements.

- II.29. New section: Subcontracting for more than 80% of the value of
  all TLD operations without ICANN's consent is not allowed, but the
  consent shall not be unreasonably withheld.

- II.30. New section: Force Majeure (unforeseeable circumstances)

- II.31. New section: No Third-Party Beneficiaries

______________________________________________________
(After all this Legalese, the obvious disclaimer: No guarantee for
nothing; I just hope I caught most of the differences. Minor changes
like "NSI --> Registry Operator" are not included.)

So, copy, paste & comment along!

Best regards,
/// Alexander
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