RE: [registrars] Re: [nc-transfer] TF Recs Ver. 1 Draft 2 Rev. 9

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

Ross,

I would respectfully admit that my "legal" interpretation is dead on.  To
further support the outcome of my legal interpretation, please refer to 5.14
which has the standard no third party beneficiary provision. I believe this
provision has already been challenged and upheld in a lawsuit by a third
party against VeriSign. I will have to dig through my prior case law to find
this one.

5.14. No Third-Party Beneficiaries. This Agreement shall not be construed to
create any obligation by either ICANN or Registry Operator to any non-party
to this Agreement, including any registrar or Registered Name holder.

Therefore, assuming that VeriSign Registry takes appropriate steps to remove
any ambiguities in their current contracts as they have proposed. Your
argument about registries enforcing their contract is mute. VeriSign has
some very smart attorneys. Hopefully, their latest solution will solve the
registrars' transfer problem. However, I believe that any attempt by the
Task Force to impose dispute resolution services into the registry contracts
and require the registry to carry this financial burden is doomed to meet
the same outcome as the Task Force's recommendation concerning the WLS.

Although we are on the same side in attempting to resolve registrar transfer
problems, I simply cannot ignore the contracts. I feel it would not be
prudent to raise people's hopes regarding solutions that are just not
viable. In summary, if the Task Force proposal as discussed is adopted, and
should the Board adopt it, registries will be able in accordance with their
contracts to charge for it and recognize a reasonable profit.

One of the problem I have with the current DNSO is that there is no
gatekeeper mechanism to prevent them from wasting people's valuable time
heading down a dead end. That is why the policy gatekeeper function in the
proposed GNSO is so important and why a bunch of non-lawyers should not be
able to veto ICANN's determination of what is or is not policy in accordance
with the contracts.

Sorry, given VeriSign Registry's recent proposed clarification of transfer
requirements, I know of no counter argument. Given the current fact pattern,
we are in check. After the VeriSign Registry interim policy is adopted I
would say it is Check Mate. Moreover, I submit that in light of how NeuLevel
previously modified its contracts unilaterally, there is nothing to prevent
VeriSign from imposing the amended contractual language. I hate to be
pessimistic, but I see no other outcome of the Task Force's current efforts.

Mike


-----Original Message-----
From: Ross Wm. Rader [mailto:ross@tucows.com]
Sent: Sunday, September 29, 2002 2:53 PM
To: Michael D. Palage; Neuman, Jeff; nc-transfer@dnso.org
Cc: Neuman, Jeff; registrars@dnso.org
Subject: Re: [registrars] Re: [nc-transfer] TF Recs Ver. 1 Draft 2 Rev.
9


> charges. As I have stated in the past, Registries have better contracts
that
> allow for protection against cost increases associated with ICANN policy.
> Registrars have no such contractual safeguard. As I stated over 18 months
> ago, the proper recourse for solving this problem was clarification of
> existing contractual ambiguities between contracting parties.

The terms of the Registry/ICANN contracts haven't changed over the last 18
months.

Further, your interpretation is questionable. Are you saying that under the
current contracts, the Registry operators have no obligation to enforce the
terms of their contracts with Registrars? Are you also implying that
Registrars *should* compensate Registrars for this "service"?

If there is a counterproposition that I am missing here, then lets hear it -
time is running out for this TF.

Thanks,


                     -rwr




Got Blog? http://www.byte.org/blog

"People demand freedom of speech as a compensation for the freedom of
thought which they seldom use."
 - Soren Kierkegaard



----- Original Message -----
From: "Michael D. Palage" <michael@palage.com>
To: "Ross Wm. Rader" <ross@tucows.com>; "Neuman, Jeff"
<Jeff.Neuman@neustar.us>; <nc-transfer@dnso.org>
Cc: "Neuman, Jeff" <Jeff.Neuman@neustar.us>; <registrars@dnso.org>
Sent: Sunday, September 29, 2002 1:57 PM
Subject: RE: [registrars] Re: [nc-transfer] TF Recs Ver. 1 Draft 2 Rev. 9


> Ross,
>
> Under Paragraph 4.4 of the Standard Registry contract, if this proposal
was
> to be enforced as an ICANN policy, then the Registries are contractually
> able to recoup their expenses AND make a reasonable profit. Therefore,
> unless a registry volunteers to bear these costs (I am not holding my
> breath), they will contractually be able to charge for these services.
Since
> registrars are their customers, we are the likely party to bear these
> charges. As I have stated in the past, Registries have better contracts
that
> allow for protection against cost increases associated with ICANN policy.
> Registrars have no such contractual safeguard. As I stated over 18 months
> ago, the proper recourse for solving this problem was clarification of
> existing contractual ambiguities between contracting parties.
>
> Mike
>
>
> 4.4. Pricing Adjustments Arising from New or Revised Specifications or
> Policies. The maximum prices stated in Appendix G shall be increased
through
> an amendment to this Agreement as approved by ICANN and Registry Operator,
> such approval not to be unreasonably withheld, to reflect demonstrated
> increases in the net costs of providing Registry Services arising from (A)
> new or revised ICANN specifications or policies adopted after the
Effective
> Date, or (B) legislation specifically applicable to the provision of
> Registry Services adopted after the Effective Date, to ensure that
Registry
> Operator recovers such costs and a reasonable profit thereon; provided
that
> such increases exceed any reductions in costs arising from (A) or (B)
above.
>
> -----Original Message-----
> From: owner-registrars@dnso.org [mailto:owner-registrars@dnso.org]On
> Behalf Of Ross Wm. Rader
> Sent: Sunday, September 29, 2002 12:53 PM
> To: Neuman, Jeff; nc-transfer@dnso.org
> Cc: Neuman, Jeff; registrars@dnso.org
> Subject: [registrars] Re: [nc-transfer] TF Recs Ver. 1 Draft 2 Rev. 9
>
>
> Jeff -
>
> Thanks for the edits. A quick pass indicates that your modifications
> substantially tighten up the process - a good thing. One thing however, it
> would be inappropriate for registrars to pick up the cost of the
enforcement
> of the contracts contemplated under 9a,b,c. If you remember, this is why
we
> moved to a third party model appeal/fast track model in the first place -
to
> allow registrars and registrants to get contractual disputes settled
quickly
> by not only having guaranteed enforcement by the registry operator, but
also
> guaranteed mediation/arbitration from a third party in the event that the
> registry operator was not able to enforce the dispute "on its face".
>
> It was always the intent of the 9a,b,c that the registries would bear the
> cost - I am not comfortable at this stage making the specific change
> requested under 9.c.ix.
>
> Comments from anyone else?
>
> Thanks,
>
>
>                      -rwr
>
>
>
>
> Got Blog? http://www.byte.org/blog
>
> "People demand freedom of speech as a compensation for the freedom of
> thought which they seldom use."
>  - Soren Kierkegaard
>
>
>
> ----- Original Message -----
> From: "Neuman, Jeff" <Jeff.Neuman@neustar.us>
> To: "'Ross Wm. Rader'" <ross@tucows.com>; <nc-transfer@dnso.org>
> Cc: "Neuman, Jeff" <Jeff.Neuman@neustar.us>
> Sent: Sunday, September 29, 2002 11:54 AM
> Subject: RE: [nc-transfer] TF Recs Ver. 1 Draft 2 Rev. 9
>
>
> > All,
> >
> > Here are some of my proposed changes to the Dispute Resolution section
of
> > the TF Report that I believe incorporates the ideas that Ross and I have
> > been working out.  I will put the usual caveat that this has not been
> > reviewed by the Registry Constituency yet, so I am not sure that they
will
> > agree with the changes that I have recommended.
> >
> > I am forwarding them a draft of the changes.
> >
> > Thanks.
> >
> >
> >
> > -----Original Message-----
> > From: Ross Wm. Rader [mailto:ross@tucows.com]
> > Sent: Friday, September 27, 2002 3:02 PM
> > To: nc-transfer@dnso.org
> > Subject: [nc-transfer] TF Recs Ver. 1 Draft 2 Rev. 9
> >
> >
> > Folks,
> >
> > Please find attached the latest revision of the TF recs. Note that I
have
> > cleaned up the draft and included all outstanding drafting items that
have
> > been submitted to me.
> >
> > This is *not* the final work of the drafting team.
> >
> > I still have to go through the document, clean up the drafting notes,
tie
> > together some of the references, ensure consistency etc. In other words,
a
> > quick spit-shine.
> >
> > If there are any comments or questions, please have them to me by noon
> > Sunday at which point I will consider the document close, start the
> > spit-shine and resubmit back to the TF late Sunday as the final output
of
> > the drafting team.
> >
> >
> >                        -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
> >
> >
> >
> >
> >
>