RE: [ga] BULK whois

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

John

As usual you did hit the nail on the head regarding the privity of contract
between ICANN and Registrars and the inability of third parties to seek a
cause of action since they are not an intended beneficiary. The district
court in the Register.com v. Verio litigation made this finding. I believe
the 2nd Circuit should be ruling on this appeal shortly if it has not done
so already.

With regard to the remainder of your post, I share some of your concerns but
will refrain from comment. However, a Whois paper that I am currently
working on will address most of these points.

Mike

> -----Original Message-----
> From: owner-ga@dnso.org [mailto:owner-ga@dnso.org]On Behalf Of John
> Berryhill Ph.D. J.D.
> Sent: Thursday, February 13, 2003 9:50 AM
> To: [GA]
> Subject: Re: [ga] BULK whois
>
>
>
> > However, the registrar in his ICANN accreditation agreement is
> required to
> > provide "bulk access" to their Whois data (minus those
> registrants that opt
> > out) to any party that request it. In return the registrar is able to
> charge
> > up to $10,000 annually.
>
>
> And, as with any registrar obligation, the relevant contract is
> between ICANN
> and the registrar, and not between the registrar and the
> registrant.  Hence,
> the registrar is, as usual, free to ignore any provision of the RAA that
> benefits registrants, and the registrant has no way of requiring the
> registrar to operate in accordance with the RAA.  ICANN, of course, has no
> will or budget to enforce the RAA, even if they were motivated to do so.
> ICANN continues to promulgate these stupid all-or-nothing
> contracts where the
> enforcement mechanism for breach of any provision is total
> de-accreditation.
> ICANN is not going to revoke a registrar's accreditation merely
> because the
> registrar does not abide by the RAA.
>
> So we have the regular spectacle of contributors such as Mr. Crispin, who
> make the point that ICANN is not a consumer protection agency,
> but entirely
> miss the point that the relevant contracts bearing on registrar procedures
> are contracts with ICANN.  Mr. Crispin's point boils down to "if
> registrars
> breach their contract with ICANN, it is not ICANN's job to care.
> *You* can't
> require ICANN to care if the contracts are not followed".  Ha,
> ha, the joke
> is on you for believing these contracts mean anything.
>
> Whois data is a prime example.  As everyone knows, all of the relevant
> contracts and access terms to whois data prevent its resale by
> third parties,
> right?  Yeah, sure... as if anyone is going to care whether whois data,
> including archived historic whois data is being sold right here:
>
> http://openaccess.dialog.com/ip/
> "Domain Names. Comprehensive information on domain names, containing both
> current registration (WhoIs) records and historic ownership
> (WhoWas) records
> for Internet domain names. "
>
> Is your registration data being sold there?  You bet it is.  Does
> all of this
> eyewash about restrictions required to be placed on whois data
> provide you,
> the registrant, with any way to get your personal data out of
> this commercial
> database?  Dream on.  What are you going to do, persuade some registrar to
> enforce the whois access agreement?  Why should they?  Because
> they want to
> spend money for you?  Yeah, right.
>
> 99% of what goes into these stupid contracts and policies is just pure
> eyewash.  That anyone even cares to the point of obsessing over
> this crap is
> more funny than anything else.  These folks are going to do whatever they
> want, and domain name registration contracts are so malleable,
> shot full of
> holes, and really devoid of any obligations on the registrar's end that
> calling them "contracts" at all makes me chuckle.
>
>
>
>
>
>
> --
> This message was passed to you via the ga@dnso.org list.
> Send mail to majordomo@dnso.org to unsubscribe
> ("unsubscribe ga" in the body of the message).
> Archives at http://www.dnso.org/archives.html
>

--
This message was passed to you via the ga@dnso.org list.
Send mail to majordomo@dnso.org to unsubscribe
("unsubscribe ga" in the body of the message).
Archives at http://www.dnso.org/archives.html