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

["Tim Ruiz" <tim@godaddy.com>]

Ross & Marilyn,

So we can put something like this in our agreements? "By accepting this
agreement you are requesting/authorizing Registrar to deny all requests to
transfer these domain names unless you specifically approve the transfer
directly with the Registrar." Interesting.

The problem with Registrar-Hold requirement is that you are trying to
dictate how registrars do collections. You both should know that the real
world is not always that clear cut. Putting a domain on Registrar-Hold takes
it out of the zone. That is a pretty drastic move, much more so than denying
a transfer away.

Tim


-----Original Message-----
From: owner-registrars@dnso.org [mailto:owner-registrars@dnso.org]On
Behalf Of Ross Wm. Rader
Sent: Wednesday, October 02, 2002 8:50 AM
To: registrars@dnso.org
Cc: nc-transfer@dnso.org
Subject: Re: [registrars] Re: [nc-transfer] TF Recs Ver. 1 Draft 2 Rev.
9


Siegfried,

Some quick comments...

> 1.) registrant must notify the losing registrar about his intention to
> transfer his/her domain to another registrar.

This can be accomplished outside of the transfer process via your
registration agreement. I'm still not sure that I completely understand the
source of this requirement. As I've mentioned in the past, if there are
specific legal concerns that need to be examined, please provide me with the
source of the concern (ie - a citation) that we can review and discuss.

> 2.) We need the possiblility to refuse transfers for the reason of not
> payment (for example chargeback).

This is allowed if the domain name has been placed on registrar-hold status.

Hope that clarifies.

                       -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" <svl@nrw.net>
To: "Neuman, Jeff" <Jeff.Neuman@neustar.us>; "'Michael D. Palage'"
<michael@palage.com>; <nc-transfer@dnso.org>; "Ross Wm. Rader"
<ross@tucows.com>
Cc: <registrars@dnso.org>
Sent: Wednesday, October 02, 2002 4:27 AM
Subject: Re: [registrars] Re: [nc-transfer] TF Recs Ver. 1 Draft 2 Rev. 9


> Hallo,
>
> after a quick overview (meaning no lawyers position) of the Sept 27
> published paper we want reinforce 2 points we cann not miss:
>
>
> 1.) registrant must notify the losing registrar about his intention to
> transfer his/her domain to another registrar. Missing that point we
> would have a problem in Germany, probably in Europe, and would
> not be able to follow the procedure. In EPP that is already implicitly
> resolved by having the registrant asking for his/her auth-code.
>
> 2.) We need the possiblility to refuse transfers for the reason of not
> payment (for example chargeback). Not allowing that is not real and
> will not be accepted by CSL, joker.com
>
>
> siegfried
>
>
> On 1 Oct 2002 at 9:48, Ross Wm. Rader wrote:
>
> > 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
> > > > >
> > > > >
> > > > >
> > > > >
> > > > >
> > > >
> >
> >
>
>