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

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

> 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.

Registrars are required to implement the contracts in accordance with their
local laws. Registrars are also required to implement the policy manifest in
the contracts according to the terms of the contracts and existing policy.
I'd suggest a complete read of the entire document at this point - the
specific recommendations can't rightly be considered in isolation.

> 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.

I'm not sure why this would be considered drastic - the domain name hasn't
been paid for. Why would resolution be important to either party at this
point?


                       -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: "Tim Ruiz" <tim@godaddy.com>
To: "Ross Wm. Rader" <ross@tucows.com>; <registrars@dnso.org>
Cc: <nc-transfer@dnso.org>
Sent: Wednesday, October 02, 2002 11:01 AM
Subject: RE: [registrars] Re: [nc-transfer] TF Recs Ver. 1 Draft 2 Rev. 9


> 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
> > > > > >
> > > > > >
> > > > > >
> > > > > >
> > > > > >
> > > > >
> > >
> > >
> >
> >
>
>