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RE: [registrars] FW: [nc-transfer] Drafting Team Status Update
Siegfried,
I agree with your interpretation, as it would be the spirit of the law as
interpreted in most European countries.
I do, however, question the practices that Joker has implemented to adhere
to this legislation.
You currently request the holder of the Joker 'servicezone' account
(typically your reseller) to log in in order to open a window of 10 days to
perform a transfer.
The 'servicezone' account holder is in your words below the one having
"apparent authority", however you seem to ignore the rights of the
registrant, who for the most part don't have access to the 'servicezone'
account.
What if your reseller has gone bankrupt and the Registrant (who not only has
apparent authority, but AUTHORITY) subsequently wishes to transfer a domain
name?
We have a current case where the domain names of a large German publication
is being held 'hostage' by the bankruptcy of your reseller.
Are you not here not only misinterpreting the rights of those with apparent
authority, but also breaching some of the basic legislations on free
competition as interpreted by both ICANN, Germany and the European Union?
Could you send that on to your lawyer because they apparently disagree with
mine?
Kindest regards,
Nikolaj Nyholm
> -----Original Message-----
> From: Siegfried Langenbach [mailto:svl@nrw.net]
> Sent: 5. september 2002 14:49
> To: ross@tucows.com
> Cc: registrars@dnso.org
> Subject: RE: [registrars] FW: [nc-transfer] Drafting Team
> Status Update
>
>
> Hallo Ross,
>
> I had to wait until the lawyer returned..therefore the delay of my
> answer.
>
> I think the problem boils down to the question :
>
> Is the lack of answer of a customer to be interpreted as ACK ?
> German ( and I guess those of a lot other countries in europe as
> well ) law knows very few cases in which that could be assumed. In
> general NO.
>
> Well, not asking him es even worse.
>
> siegfried
>
>
>
> On 30 Aug 2002 at 13:43, Ross Wm. Rader wrote:
>
> > Siefried - also some clarifications for you ;)
> >
> > > 3 r) IRDX transactions SHOULD be denied by the Losing
> > > Registrar if the Gaining Registrar has not implemented the
> > > minimum standards and practices contemplated by this
> > > document or the relevant Registry Agreement
> > >
> > > for me its not clear what are the minimum standards. Are they
> > > somewhere marked in blue? or is it for everybody to choose
> > > "his" minimum standards ?
> >
> > Bad wording. The document is the minimum standard.
> >
> > > 2.) According the consumer-protecting law in germany the "entity
> > > with apparent authority" has to notify the losing registrar
> > > of her/his
> > > decision, which sounds reasonable ( he/she has a contract
> with the
> > > losing registrar and has to give notice ), I personally had
> > > to learn that
> > > in the last month and to change my view and our process.
> >
> > I would need to see some more of this from an official
> source in order
> > to start working in the exceptions. As it stands, this runs
> contrary to
> > ICANN's current policy on the matter and as such should not
> be analysed
> > lightly. As discussed yesterday, registrars have an
> obligation to uphold
> > their contract with ICANN in accordance with the law - not make
> > exceptions to their performance of the contract in
> accordance with the
> > law. I suspect that there is a reasonable compromise that
> would allow
> > you, and others in your position, to abide by your local law without
> > running contrary to ICANN policy. In order to affirm this however, I
> > would need some concrete citations or pointers to where I could find
> > them.
> >
> >
> > > 3 h) IRDX processes MUST maintain minimum standards of
> > > consumer protection, while taking into account the legal,
> > > linguistic and cultural differences of the domain name
> > > registration market, registrars, and Registered Name holders.
> > >
> > > with other words : everybody is entitled to not care about that
> > > document.
> >
> >
> > We've since reworded this passage, but neither the intent nor the
> > statement are meant to imply what you have stated.
> >
> > The clause now reads: "IRDX processes MUST take into
> account the legal,
> > linguistic and cultural differences of the domain name registration
> > market, registrars, and Registered Name holders."
> >
> > I call this the "Connelly Clause" as Bob was quite insistent that
> > however the process is implemented that his Japanese
> registrants didn't
> > receive any unreadable instructions or forms in English :). In other
> > words, as this clause is part of the principles (which were drafted
> > prior to the processes being determined), it is solely
> intended to state
> > that whatever processes are implemented in order to support the
> > transfers policy must support the needs of the global
> registrant - not
> > the local ones.
> >
> > I hope this helps.
> >
> > -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
> >
> >
> >
> >
> > > -----Original Message-----
> > > From: Siegfried Langenbach [mailto:svl@nrw.net]
> > > Sent: Thursday, August 29, 2002 3:34 AM
> > > To: ross@tucows.com; 'Registrar Constituency'
> > > Subject: Re: [registrars] FW: [nc-transfer] Drafting Team
> > > Status Update
> > >
> > >
> > > Hallo,
> > >
> > > I have a problem with that document, well probably 2 :
> > >
> > > 1.) the general wording in some Para. only leads to
> additional work
> > > for lawyers.
> > > just one Example:
> > >
> > > 3 r) IRDX transactions SHOULD be denied by the Losing
> > > Registrar if the Gaining Registrar has not implemented the
> > > minimum standards and practices contemplated by this
> > > document or the relevant Registry Agreement
> > >
> > > for me its not clear what are the minimum standards. Are they
> > > somewhere marked in blue? or is it for everybody to choose
> > > "his" minimum standards ?
> > >
> > > 2.) According the consumer-protecting law in germany the "entity
> > > with apparent authority" has to notify the losing registrar
> > > of her/his
> > > decision, which sounds reasonable ( he/she has a contract
> with the
> > > losing registrar and has to give notice ), I personally had
> > > to learn that
> > > in the last month and to change my view and our process.
> > >
> > > Obviously that is contrary to the statement:
> > > 1 b) Losing Registrars would authorize the transfer of such
> > > domain names in the absence of confirmation to the Losing
> > > Registrar by the Registered Name holder or an individual with
> > > the apparent authority to legally bind the Registered Name
> > > holder.
> > >
> > > I already had problems with registrants, being in
> vacation or for
> > > whatever reason not answered our mail (in our previous version)
> > > and had the domains transferred.
> > >
> > > Conclusion:
> > > 3 h) IRDX processes MUST maintain minimum standards of
> > > consumer protection, while taking into account the legal,
> > > linguistic and cultural differences of the domain name
> > > registration market, registrars, and Registered Name holders.
> > >
> > > with other words : everybody is entitled to not care about that
> > > document.
> > >
> > > siegfried
> > >
> > >
> > >
> > > On 28 Aug 2002 at 12:16, Ross Wm. Rader wrote:
> > >
> > > > Members,
> > > >
> > > > Please find to follow below a brief report on the status of
> > > the work
> > > > of the Transfers TF as it relates to Transfers. Note
> that we are
> > > > progressing reasonably well through a review of the Registrar
> > > > Constituency proposal and have made a few modifications
> > > that I believe
> > > > are amenable to the interests of Registrars. I had hoped at
> > > this point
> > > > that we would have received feedback from the Registry
> Constituency
> > > > given their renewed commitment to the issue, however I
> suspect that
> > > > "real life" is somehow interfering with finalizing the
> revisions
> > > > referenced below. I don't expect this delay to draw out in any
> > > > meaningful way (we should be able to resolve it this
> > > afternoon during
> > > > our call) but it needs to be brought to the attention of the
> > > > constituency nonetheless.
> > > >
> > > > The Task Force is still targetting the Shanghai meeting for
> > > tabling of
> > > > our recommendations and we look to be in good shape at this
> > > point. If
> > > > there are any questions between now and Amsterdam, I am
> happy to
> > > > answer them as they come up. I expect to deliver a full
> progress
> > > > report and draft recommendations during the timing of
> the Amsterdam
> > > > meeting.
> > > >
> > > > Thanks in advance, (and as noted below, apologies for the
> > > proprietary
> > > > document format).
> > > >
> > > >
> > > >
> > > > -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
> > > >
> > > >
> > > >
> > > >
> > > > -----Original Message-----
> > > > From: owner-nc-transfer@dnso.org
> > > [mailto:owner-nc-transfer@dnso.org]
> > > > On Behalf Of Ross Wm. Rader
> > > > Sent: Wednesday, August 28, 2002 12:10 PM
> > > > To: 'Transfer TF (E-mail)'
> > > > Subject: [nc-transfer] Drafting Team Status Update
> > > >
> > > >
> > > > Folks,
> > > >
> > > > Please find attached a copy of the latest draft (version 1,
> > > revision
> > > > 2, draft 2) of the IRDX proposal that the drafting team
> has been
> > > > working on for the last two weeks or so.
> > > >
> > > > During the call today, I would like to focus on a review of
> > > points 8
> > > > through 15 (pages 14, 15 and 16) (highlighted in blue)
> with an eye
> > > > towards ensuring that the process appropriately takes into
> > > account the
> > > > needs of R'ants, R'rars and R'ry's. The feedback that
> the drafting
> > > > team gathers through this review will be invaluable in
> providing us
> > > > with the guidance that we need to complete our task.
> > > >
> > > > I would also like to review the formal revisions made
> thus far to
> > > > ensure that the language used appropriately captures
> the intent and
> > > > sentiment of the larger group.
> > > >
> > > > Please note that the revisions are not as sweeping as I had
> > > expected
> > > > as we are still waiting for input on enforcement mechanisms
> > > from the
> > > > Registry Constituency reps to the Drafting Team. I do not
> > > have an ETA
> > > > for delivery of these details, so its not likely that
> we can cover
> > > > them on the call, however the call will give us the
> capability to
> > > > rework the deadlines in order to keep the document on track
> > > >
> > > > If there are any questions, please don't hesitate to
> drop me a note.
> > > >
> > > > Apologies in advance for the proprietary document format.
> > > >
> > > >
> > > >
> > > > -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
> > > >
> > > >
> > > >
> > > >
> > >
> > >
> >
> >
>
>
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