Re: [centr-ga] Re: [nc-deletes] FW: [council] Concerns Regarding Report of DeletesTask Force

["John Berryhill Ph.D. J.D." <john@johnberryhill.com>]

The comments are worth considering for a few days, but certainly would have
been more helpful if they were submitted during the comment period.

There is one error where the comments are seriously misguided, however, and
that relates to expiration of a domain name during litigation.

To understand this central flaw in much of the comments, one must remember
what a domain name is.

A domain name is the incident of a contract between the registrar and the
registrant.  Specifically, the registrant contracts for a term of
registration.  At the end of that term, it is not as though the "domain name"
expires.  It is the contract - the basis for the domain name's existence -
which expires.  The domain name ceases to be.

Sometimes failing to appreciate that fact makes people think that a
"re-registered" domain name is the "same" domain name.  It is not.  It is the
creature of an entirely new contract.  The domain name may have the same
alphanumeric sequence as a formerly existing domain name, but it is most
certainly not the "same" domain name.

Now, here is why that matters to some of the artificial concerns raised in
the ICANN staff review.

It is certainly true that a registrar may be required to lock a domain name
during litigation, and indeed, the registrars are required to lock domain
names when they receive notice of litigation.

However, ICANN staff seriously errs by telling this task force that the
registrar would be required to maintain the domain name in existence merely
because it is required to lock the domain name, or is ordered to lock the
domain name.   Because if a registrar is told to lock the "domain name", that
means that the registrar is being told to freeze the registration data
pertaining to that contract.  The registrar is most certainly NOT being told
to extend the term of the contract indefinitely.  The term of registration is
a material and inseparable aspect of a "domain name".

What ICANN staff is saying would be analogous to a dairy farm being required
to keep a shipment of milk in a fresh condition during litigation over
ownership thereof.  It can't.  It is in the nature of milk to go sour.
Likewise, it is in the nature of a domain name registered for a fixed period
of time, to expire.

It is interesting that ICANN staff does not seem to notice the problem of
"permanent litigation lock", which is the tactic I laid out months ago for
any registrant to obtain permanent free domain name registration - and which
I am personally aware that some registrants have taken advantage of.  If Mr.
Touton has read this far, I would be interested to know what a registrar is
supposed to do to purge themselves of it:

HOW TO GET A PERMANENT, FREE DOMAIN NAME:

1)  Register a domain name.
2)  File a lawsuit in an obscure court, especially in a developing nation
3)  Send a copy of the received complaint to the registrar
4)  Do not prosecute the lawsuit, and send no further court papers to the
registrar

Now, the registrar has received notice of an action, and that registrar will
NEVER receive notice of dismissal or settlement of the action.  Thus one has
gained a permanent free registration.

The lawsuit may simply be dismissed by the court, but the registrar has no
mechanism for knowing that.

And every time I publish this procedure, the roster of registrants who have
helped themselves to this procedure grows.  When you consider that you can
file a lawsuit in, say, India, for next to nothing, and that if you do
nothing, then the court might not even docket a hearing for several years,
then it will occur to you that this procedure is a perfectly rational thing
for a registrant to do, instead of paying for several years worth of domain
name registration.

Requiring a domain name to remain registered past its term for the sake of
litigation over the domain name makes as much sense as requiring the same
thing of a commodities option contract.  If you have an option to buy oil on
May 1 at $40 a barrel, and someone disputes the ownership of that option,
then if you do not resolve your dispute prior to May 1, then you have nothing
to fight over.  In that context, nobody would dream of "exteding" the
contract merely for the sake of litigation, and it makes as much sense in
this context.

One can surely have disputes over the beneficiary parties to a contract, but
there is no legal context in which the existence of such a dispute acts to
materially alter the terms of the contract itself.  The suggestion that there
is some sort of exception here is simply legal nonsense.

To the extent there is any "potential conflict" with a court order, putting
in an overall "unless ordered otherwise by authorized legal authority" solves
any such conflict.