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

["Ross Wm. Rader" <ross@tucows.com>]

This sounds like an eminently reasonable compromise. Barring objection from
my constituency let's table this for a quick discussion on the TF call for
Wednesday.


                       -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: "Neuman, Jeff" <Jeff.Neuman@neustar.us>
To: "Neuman, Jeff" <Jeff.Neuman@neustar.us>; "'Michael D. Palage'"
<michael@palage.com>; "'Ross Wm. Rader'" <ross@tucows.com>;
<nc-transfer@dnso.org>
Cc: <registrars@dnso.org>
Sent: Monday, September 30, 2002 5:40 PM
Subject: RE: [registrars] Re: [nc-transfer] TF Recs Ver. 1 Draft 2 Rev. 9


> I know I am posting a lot today, and for that I apologize. Ross, I think
if
> you add the following language to the draft, it would more accurately
> reflect our discussions:
>
> What if we change Section 9(c)(ix) to the following:
>
> ix) Fees.  The gaining and losing registrars recognize that providing
> this dispute resolution service may result in extra costs to the Registry
> Operator.  As such, the issue of appropriate fees (if any) that a Registry
> Operator may charge, and who is responsible for such fees (if any), shall
be
> determined by ICANN in consultation with the gTLD Registries and
Registrars.
> In the event that any fees are assessed for providing this service, the
> party that loses such dispute shall be responsible for covering the entire
> amount of fees.
>
>
> -----Original Message-----
> From: Neuman, Jeff
> Sent: Monday, September 30, 2002 9:05 AM
> To: Neuman, Jeff; 'Michael D. Palage'; 'Ross Wm. Rader';
> 'nc-transfer@dnso.org'
> Cc: 'registrars@dnso.org'
> Subject: RE: [registrars] Re: [nc-transfer] TF Recs Ver. 1 Draft 2 Rev.
> 9
>
>
> Ross,
>
> What if we change Section 9(c)(ix) to the following:
>
> ix) Fees.  The gaining and losing registrars recognize that providing
> this dispute resolution service may result in extra costs to the Registry
> Operator.  As such, the issue of appropriate fees (if any) that a Registry
> Operator may charge, and who is responsible for such fees (if any), shall
be
> determined by ICANN in consultation with the gTLD Registries and
Registrars.
>
> -----Original Message-----
> From: Neuman, Jeff
> Sent: Sunday, September 29, 2002 8:05 PM
> To: 'Michael D. Palage'; Ross Wm. Rader; 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
>
>
> I am not sure all of these messages are getting posted on the Transfer TF
> list, but I think they are very helpful to show the issues that are out
> there.
>
> Ross, in the interest of getting the document out there, can we just leave
> the issue of fees out of this draft, except to state that this issue will
> need to be addressed by a drafting committee should the policy be passed
by
> the ICANN Board?
>
> Jeff
>
> -----Original Message-----
> From: Michael D. Palage [mailto:michael@palage.com]
> Sent: Sunday, September 29, 2002 3:43 PM
> To: Ross Wm. Rader; 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
>
>
> 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
> > >
> > >
> > >
> > >
> > >
> >