Re: [nc-transfer] RE: [registrars] Pandora's Box (as it relatestotransfers)

[Dan Steinberg <synthesis@videotron.ca>]

Ross,

This is just a quick response to your FYI at this point.

I read through the document (it's not too long) and I thought about it
for a bit.
I just don't *get* that the implications necessarily follow from the
facts.
I see the facts....

for example, you write (quoted more completely below)
> Fact: Without appropriate enforcement, even the most perfect policy is
> > useless.
> > Implication: We must find a party willing to undertake appropriate
> > enforcement of the new transfers policy.

I don't see that it follows that we *must* find a party willing to
undertake.
first I dont see it necessarily being *us* and second, I dont see it as
something that *has* to happen. 
Every law or policy or code of conduct has some transgressors. If
everyone brakes a particular law...well...does everyone get thrown in
jail? not necessarily. take speeding for example. Almost nowhere in the
world...is a speed limit strictly enforced to within 1 mph or kph of the
designated limit. Only the serious transgressors are sanctioned and you
have an outside agency...(police) tasked with enforcement.  Its not the
auto dealers or the licence bureau.  And in many places the police
operate under special legislation that grants them specific rights. My
point is...that the act of enforcement...is not necessarily a
'given'....some rules just dont get enforced at all, some get enforced
partially and some are completely ignored. I think for you to get the 'A
then B' logic...you would have to show first...a few facts outlining how
all the transgressions are bad...and widespread...and enforcement being
a matter of public policy or public order.

And when I re-read....I start having a problem even with the
fact...cause...sometimes...policies are there...just to get most
people...to toe the line...and it is accepted that a few will cross it.
its called self-regulation.
A great example of this... is waiting lines (or lineups) for popular
events line first-run movies or shows or washrooms. Most people wait
patiently in line, following the person(s) in front not trying to pass
and not expecting to have to worry about the people behind them ... a
few will go find friends in line a jump in, a few will wait for the line
to start moving and try to sneak in between moving people...(kinda like
cars try to sneak in to a long line at an exit...
Now in this case....it is very rare to find enforcement. People are
generally polite and civil, and they follow the rules.


I think I've said enough for the day...


"Ross Wm. Rader" wrote:
> 
> [Note to TF: This is just an FYI at this point]
> 
> > The slippery slope that I am specifically concerned about is
> > the growing demand list that we are potentially imposing upon
> > registries within the context of ICANN policy. My concern is
> > based upon the registry contracts which the registries have
> > with ICANN.
> 
> I've been meaning to send an update to the list around this point since
> Wednesday - thanks for the indirect reminder.
> 
> Folks -
> 
> This week, the Registry Constituency has taken an explicit position that
> they will not be party to enforcing their contracts as it relates to
> individual registrars. As a general point, I find this to be a
> ridiculous position for them to be taking - they signed up to manage a
> TLD and part of that contract spells out what the obligations of each
> party to the contract are. They are unwilling to enforce the portions of
> the contract that they may find "inconvenient". As a side note, I wish I
> had that luxury as it related to my resellers and registrants. If anyone
> is wondering where the laxness surrounding the contracts within the
> ICANN structure comes from, I submit that you should first look at the
> members of this constituency.
> 
> Now as to the specific as to what this means for the transfers policy.
> Let me run through a quick analysis (sorry for the impending length of
> this message)
> 
> Fact: Registries are unwilling to enforce the contracts
> Implication: Transfer policy that falls under the "jurisdiction" of the
> registry/registrar contracts is unlikely to be enforced.
> Fact: Without appropriate enforcement, even the most perfect policy is
> useless.
> Implication: We must find a party willing to undertake appropriate
> enforcement of the new transfers policy.
> Fact: Registry Operators have contracted for the obligations outlined in
> their contract at a per unit price of roughly $6 (with minor variations
> from registry to registry)
> Implication: If the burden of enforcement is removed from the registry
> operators, then they should no longer be entitled to the portion of the
> per unit funds that would normally be allocated to enforcement of the
> contracts (as it specifically relates to transfers).
> 
> Proposal: I would like to take a proposal back to the task force that
> removes all responsibility for enforcement of the transfers policy from
> the registry contracts and place it with ICANN as part of our Registrar
> Accreditation Agreement. Further, as part of this transfer of this
> transfer of responsibility moves the burden from the registries to
> ICANN, I will be proposing that the fee cap of ~$6 be universally
> dropped by roughly 1/3 in order that the registrars have sufficient
> funds at their disposal to assist ICANN in underwriting the costs of
> their new enforcement responsibilities. This will also have the
> side-benefit of having a universal transfer policy in place regardless
> of which gTLD registry we are engaged with.
> 
> As Mike points out, there is give and take in every relationship,
> however I find it troublesome that the registries assume that we will
> bear the costs of their decisions. In this case, I am disappointed that
> the registry operators that we have selected have been found incapable
> of performing their obligations under the contracts. But rather than
> crying over spilt milk, we need to find a way to fix this serious
> problem. I believe that this proposal provides a reasonable and
> appropriate way for both constituencies to achieve their goals with the
> transfers policy.
> 
> I will be taking comments on this proposal until just before our TF
> conference call next Wednesday. I will be unofficially closing comment
> on Tuesday night, but all opinions and input that get to me up to the
> point that I actually make a concrete proposal to the TF will be taken
> into account in some way. (This is a roundabout way of saying that if
> you really want to have an impact, please get me your thoughts sooner
> than later ;)
> 
> I can be reached at 416.538.5492 throughout the work week or via email
> through the weekend if you wish to consult offline...
> 
>                        -rwr
> 
> "There's a fine line between fishing and standing on the shore like an
> idiot."
> - Steven Wright
> 
> Got Blog? http://www.byte.org/blog
> 
> Please review our ICANN Reform Proposal:
> http://www.byte.org/heathrow

-- 
Dan Steinberg

SYNTHESIS:Law & Technology
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