RE: [ga] Legal Briefing

["Michael D. Palage" <michael@palage.com>]

Eric:

I think this thread provides a classic example of why contracting parties
tend to avoid the noise of ICANN Policy efforts. However, since I never shy
away from running around in an open field during a lighting storm swinging a
golf club, let me continue.

I submit that the divergent viewpoints of registries and registrars are self
evident that no consensus exists on some of these complex issues.
Additionally, if in fact there was a monopoly as you allege, the registries
and registrars would be in lock step regarding these proposals.

I never said that people and businesses that register and use domain names
are not important. They in fact have the ultimate responsibility of speaking
with their wallet in choosing their registrar of record and what tld they
register in.

Mike



-----Original Message-----
From: eric@hi-tek.com [mailto:eric@hi-tek.com]
Sent: Monday, October 21, 2002 2:29 PM
To: Michael D. Palage
Cc: DannyYounger@cs.com; touton@icann.org; ga@dnso.org
Subject: Re: [ga] Legal Briefing


Damn fine show here,
In our work we say that "Marketing is education, and education is Marketing"
I feel educated and marketed by this fine explanation of Registrars
workings.

The use of the term advocate was most educational.  We here in the GA only
have representatives.
How come they get advocates?  I am glad to see that Louis has a direct line
with registrars and no line what so ever with users.  Makes sense.
Unlike these highly important registrars and registries we will continue to
have direct communication with users. And we will reserve the time necessary
to provide service through effective communication skills.
It is quite funny that the people who actually pay the money to the company
are not considered important in the running of the business.  Go Figure!
Can you spell  M-O-N-O-P-O-L-I-E-S???
e

"Michael D. Palage" wrote:

> Danny:
>
> Not to sound like an attorney, but there is no contractual requirement
that registrars or registries participate in the DNSO, or its processes.
Regardless of the level of participation by either registrars or registries,
such action or inaction does not waive the contractual rights contained in
their contracts. Although I will work on a more detailed response to your
questions below during my flight to China, I wanted to give you some quick
answers.
>
> Question 1: The Registrar Constituency hase had a sort of revolving door
of representation in the Whois task force. Although Paul Kane was an initial
registrar advocate we have had several representatives serving on this Task
Force: Philip, Ken and Tim. Although some people may find this hard to
believe, but registrars do have businesses to run and they are not always
able to devote the necessary resources to play in the DNSO's policy sandbox
that other people seem to have. I think Ross has been doing a good job of
advocating the registrar position on the Transfer's Task Force. However, as
I previously noted as the final recommendations become clearer there is a
growing number of registrars expressing concern about certain
recommendations. I do not believe that the registrars nor the registries are
trying to force the Task Force back to square one. All I believe they are
trying to do is ensure that their contractual safeguards are preserved.
>
> Question 2: The Executive Committee delegates the responsibilities of
representing the registrars viewpoints to specific representatives. They
periodically report to the constituency and the executive committee on their
progress. When a final report is available it is put forth to the
constituency for a vote. Unlike other constituencies that fail to delegate
responsibilities to other members, I do not specifically know what has or
has not been stated to the Task Forces. All I know is what has been
communicated to me via email, in person meetings, teleconferences, etc. Not
all communication within the registrar constituency occurs on the listserv.
>
> Question 3: I cannot say with certainty why registrar come to me. Maybe
because I tend to listen and recommend a reasonable and prudent course of
action based upon the facts and the binding contracts. Registrars and
registries may chose to contact Louis because he is the general counsel of
ICANN and registrars and registries have contracts with ICANN. Speaking for
myself, I contacted Steve Metalitz and raised a number of concerns regarding
some of the initial recommendations in an earlier Whois draft report. This
was followed up with some discussions with my registry counterparts. Based
upon this discussion I am writing a formal response to the Whois Task Force
showing what I believe is serious fundamental flaws in the report, as well
as potential recommendations for moving forward with a solution to the
problem.
>
> I guess one of the biggest reasons why people choose not to actively
participate in the DNSO processes is that there is so much noise on the task
force and mailing lists, that they prefer to sit back and rely upon the
contracts they entered into in good faith. The same contracts that allow
them to employ people, pay rent and taxes, etc. I know this is definitely
not the answer you were looking for but it is part of the reality we live
in.
>
> Best regards,
>
> Mike
>
> -----Original Message-----
> From: DannyYounger@cs.com [mailto:DannyYounger@cs.com]
> Sent: Monday, October 21, 2002 10:27 AM
> To: michael@palage.com; touton@icann.org
> Cc: ga@dnso.org
> Subject: Re: [ga] Legal Briefing
>
> Michael,
>
> You are doubtless aware that I hold no particular fondness for the Task
Force
> concept which serves to limit participation rather than encouraging
> participation and substantive contributions.  We again now find ourselves
at
> a point where after initial recommendations have been made, those that
> haven't had a chance to participate in the policy development process now
> take issue with the recommendations studiously developed by their peers
> (bringing us back to square one).
>
> While you have called for the rejection of the WHOIS Task Force interim
> recommendations deeming them to be inconsistent with ICANN’s existing
> contractual obligations, a violation of ICANN’s mission and core values,
in
> conflict with existing technical and market realities, and constituting a
> treat to the stability of the Internet, I would note that the registrar
> constituency does indeed have a representative assigned to the WHOIS Task
> Force, Ken Stubbs, and that I am not aware of any such issues being raised
by
> Ken on the Task Force Discussion List.
>
> This raises the following questions:
>
> 1.  Why aren't members of the registrar constituency following the policy
> development process within the TF, interacting with their
> representative-of-record on the Task Force, and instructing him to post
their
> comments to the list for consideration by other stakeholders prior to the
> publication of an Interim Report?
> 2.  Why hasn't your representative raised such issues for discussion on
the
> TF list if they indeed are of the magnitude that you describe and are of
such
> great concern to the constituency?
> 3.  Why do your members find it necessary to go straight to either
yourself
> or to ICANN staff with their complaints and concerns rather than going to
> their TF representative so that issues might be addressed in mutual
> consultation prior to arriving at what is now the Interim Report stage?
>
> What I am seeing is more of an attempt to derail a process than to
cooperate
> within the process itself.  Constantly going back to square one serves
> nobody's interests.  If the process itself is flawed, then perhaps we need
to
> take another hard look at the process and consider appropriate changes
before
> we again head down this profitless road, but acting to do no more than
trash
> the work of others that have diligently cooperated for well over a year to
> arrive at recommendations is not the best possible way forward.
>
> Best regards,
> Danny
>
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