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

[William X Walsh <william@userfriendly.com>]

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

> Hello William,
> on 9/20/01 10:41 PM, William X Walsh at william@userfriendly.com wrote:

>> Thursday, Thursday, September 20, 2001, 1:44:07 PM, Joanna Lane wrote:
>> 
>>> Why does the Losing Registrar need to know whether the Domain is in a UDRP
>>> situation, or more important, whether the Registered Name Holder is pending
>>> bankrupcy? Surely, as long as the Losing Registrar's bills are paid, and the
>>> Domain will still be subject to the same UDRP procedures whoever the gaining
>>> Registrar may be, it's none of their business? It seems to me another reason
>>> for delay, also an intrusion of privacy into a Registrant's personal
>>> affairs. Anyway, how on earth can a Registrar check whether a foreign
>>> national is subject to a pending bankrupcy?
>> 
>> These parts of the "rules" are not new, they are in the existing
>> policies as well.  It provides for a reason why the losing registrar
>> may deny a transfer, not that they are obligated to do so.
>> 
>> Remember, the UDRP provides that someone filing legal actin may do so
>> in the jurisdiction of the registrar, so a change of registrars during
>> a UDRP proceeding would change the entire dynamics of the process.
>> (By the way, I strongly disagree with that provision of the UDRP).

> I understand that, but it's no different from a business changing its
> registered office while involved in legal proceedings, which can result in
> change of jurisdiction, and where I come from, that's not illegal. UDRP is
> under review and it may be better to reword this agreement to be less
> specific, stating a requirement to be consistent with UDRP rules, whatever
> they may be. (IANAL). A domain name is either in UDRP or it is not, and
> fairly easily discernable, so although I do not agree with compounding UDRP
> errors in this way, it is not something that the Losing Registrar can turn
> to advantage at whim. That is not the case for the Bankrupcy clause. 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.

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.

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.

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.

-- 
Best regards,
William X Walsh <william@userfriendly.com>
Userfriendly.com Domains
The most advanced domain lookup tool on the net
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