Re: Re[4]: [ga] Registrars Draft: Transfers

[Joanna Lane <jo-uk@rcn.com>]

Hello William,

on 9/22/01 2:45 AM, William X Walsh at william@userfriendly.com wrote:

> Friday, Friday, September 21, 2001, 1:20:49 PM, Joanna Lane wrote:

>>The
>> bankrupcy clause is onerous on the Registrant. I have yet to receive any
>> answer from the Regisrar community to my question: how can a Registrar check
>> whether a foreign national is subject to a pending bankrupcy? If one is
>> looking for an excuse to deny transfer, this is it, and I thought the whole
>> point of redoing these Registrar Agreements was to avoid exactly that.
> 
> They don't have to check, Joanna.  The agreement places no obligation
> for them to do that.  But, let's say that the court has notified the
> registrar the company is in bankruptcy, and that the domain name is
> being considered as one of the assets to pay off the debts of the
> company.  Transfer of the domain name may make it difficult, or
> impossible, to recover the domain name, again because of
> jurisdictional changes.

Of course Registrars must act upon Court Orders, but that is not what this
clause says. The wording is so vague, in no way does it reflect the
interpretation you suggest, whereas it does empower the losing Registrar to
deny the autoNACK for some ill-defined reason that would require
investigative procedures that are not even available them. That puts a very
large hole in the autoNACK bucket.
> 
> The provision doesn't require the registrar to deny, it provides it as
> one of a list of valid reasons a registrar can use.  The list is not
> exhaustive either, presumably any legal dispute regarding a domain
> name would be under the same kind of sufficient grounds.  A court may
> hold that the registrar who is informed of the case, and permits a
> domain transfer to another registrar anyway, acted negligently.  This
> provides a way for registrars concerned about that to use that as a
> permissible excuse to deny the transfer.

The way to protect the Losing Registrar is to build into this agreement the
requirement for the Registrant to take responsibility for disclosing any
pertinent legal proceedings, failing which the DN may be autoNACKed. I would
suggest that both Losing and Gaining Registrar would then be free of
liability unless it could be proved that they were in receipt of Court Order
at the time. If the Registrant fails to disclose voluntarily that a DN is in
dispute or that they are the subject of bankrupcy proceedings, then they
could be found to be in contempt of court.

I maintain that it is not the Registrar's job to police the Registrant
community on behalf of the judicial system and that they are not able to do
so anyway. If what you say is true, and I have no reason to believe it is
not, then the present clause is also onerous on the Losing Registrar, in
that the Losing Registrar may be acting negligently if they do not undertake
bankrupcy investigations and yet they have no way to comply with that
requirement. 

> 
> We can argue if it is the right thing to do, and I'd probably agree
> with you.  But this battle is not about repairing these parts of the
> policy, and if you try and turn this into a complete revamp, it makes
> accomplishing the immediate goal more difficult, perhaps impossible.

It seems a simple task to strike through one clause that makes no sense and
does nobody any favors. You may view this as detrimental to the immediate
goal, whereas I see it as supporting the immediate goal. I have said it
before  - if the losing Registrar is looking for a catch 22 clause to deny
autNACK, this is just perfect.
> 
> So those issues would be resolvable in future proceedings to flesh out
> the full scope of the policies surrounding registrar transfers. Right
> now, the issue of auto Nak is much more important, and needs to be the
> focus of the current discussion.

This is about the autoNACK for reasons stated above. Why can't it to be
removed unless objective reasons to keep it are received from the
Registrars? As stated before, I have yet to hear any.

Regards,
Joanna

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