[CCWG-ACCT] Board comments on the Mission statement

Mon Nov 23 15:23:56 UTC 2015

They turned up.

On 23/11/15 15:03, Burr, Becky wrote:
> Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence?
>
> Section 3.7.7.9 of the RAA has been in place from the beginning of time.
>   Here is the language from the 2001 RAA:
>
>     3.7.7.9 The Registered Name Holder shall represent that, to the best
>     of the Registered Name Holder's knowledge and belief, neither the
>     registration of the Registered Name nor the manner in which it is
>     directly or indirectly used infringes the legal rights of any third
>     party.
>
> Here it is in the 1999 RAA:
>
>     7. g. The SLD holder shall represent that, to the best of the SLD
>     holder's knowledge and belief, neither the registration of the SLD
>     name nor the manner in which it is directly or indirectly used
>     infringes the legal rights of a third party.
>
>
> As someone who was part of the team drafting and negotiating the 1999
> RAA, I can assure you that the inclusion of this requirement in the RAA
> was intended to be within the scope of ICANN’s Mission.
>
> *
> *
>
> *J. Beckwith Burr****
> **Neustar, Inc.***/**Deputy General Counsel & Chief Privacy Officer
> 1775 Pennsylvania Avenue NW, Washington D.C. 20006
> *Office:***+1.202.533.2932 *Mobile:***+1.202.352.6367 */**neustar.biz*
> <http://www.neustar.biz>
>
>
> From: Alan Greenberg <alan.greenberg at mcgill.ca
> <mailto:alan.greenberg at mcgill.ca>>
> Date: Sunday, November 22, 2015 at 10:06 PM
> To: "Silver, Bradley" <Bradley.Silver at timewarner.com
> <mailto:Bradley.Silver at timewarner.com>>, Greg Shatan
> <gregshatanipc at gmail.com <mailto:gregshatanipc at gmail.com>>, "Mueller,
> Milton L" <milton at gatech.edu <mailto:milton at gatech.edu>>
> Cc: Accountability Community <accountability-cross-community at icann.org
> <mailto:accountability-cross-community at icann.org>>
> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement
>
> I rarely fill people's mailboxes just to do this, but in this case;
>
> +1
>
> Alan
>
>
> At 22/11/2015 08:31 PM, Silver, Bradley wrote:
>
>> I want to echo and support Gregâ€™s response below.  Miltonâ€™s
>> position that an existing provision of the RAA is out of the scope of
>> ICANNâ€™s mission is illuminating.  I had been operating on the
>> (hopeful) presumption that what we were attempting to do was find a
>> way to describe ICANNâ€™s mission in a manner that reflects its
>> current activities, and avoid drafting anything that could adversely
>> impact its continued ability to do so while clearly preventing any
>> undue expansion. If those who support the language in the second
>> sentence are seeking a way to attack the validity or enforceability of
>> existing contractual provisions, then the concerns of the board are
>> not only well founded, they are grossly understated.
>>
>> *From:* accountability-cross-community-bounces at icann.org
>> <mailto:accountability-cross-community-bounces at icann.org>
>> [mailto:accountability-cross-community-bounces at icann.org
>> <mailto:accountability-cross-community-bounces at icann.org>] *On Behalf
>> Of *Greg Shatan
>> *Sent:* Sunday, November 22, 2015 3:01 AM
>> *To:* Mueller, Milton L
>> *Cc:* Accountability Cross Community
>> *Subject:* Re: [CCWG-ACCT] Board comments on the Mission statement
>>
>> Milton,
>>
>> I strongly disagree that 3.7.7 is out of scope of ICANN's mission.  I
>> also don't think it's useless, nor is it an uncommon provision in many
>> terms of service and similar agreements.  3.7.7 only asks for the
>> registrant's "knowledge and belief" -- so they are not required to
>> know whether they are infringing anywhere under any jurisdiction.
>> They are only required to make reference to what they already know --
>> an entirely reasonable and ordinary requirement.
>>
>> Is it your intent that the new provision we are discussing places
>> 3.7.7 out of scope, and thus serves as a basis for an IRP or other
>> challenge seeking to nullify 3.7.7?  Since 3.7.7 is only an "example,"
>> what other sections are you trying to place out of scope?
>>
>> Thanks.
>>
>> Greg
>>
>> On Sat, Nov 21, 2015 at 5:56 PM, Mueller, Milton L <milton at gatech.edu
>> <mailto:milton at gatech.edu>> wrote:
>>
>>
>> > -----Original Message-----
>> >
>> > See section 3.7.7 of the registrar accreditation agreement (RAA):
>> >https://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources_pages_approved-2Dwith-2Dspecs-2D2013-2D09-2D17-2Den&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=11R4XkcvGwOIsQkhhyE47Z7B829g9E2Cip1amJSBQu0&s=5ThaiusaRSYwZuxG3vlUf8hTsMh251yjw_-T7i4DOFg&e=>
>>
>> >
>> > 3.7.7.9 The Registered Name Holder shall represent that, to the best of the
>> > Registered Name Holder's knowledge and belief, neither the registration of
>> > the Registered Name nor the manner in which it is directly or indirectly used
>> > infringes the legal rights of any third party.
>>
>> Bruce: this is a good example of how the RAA is currently out of
>> scope. To begin with, it is a completely useless element of the RAA.
>> This statement does not stop anyone from doing anything, and it does
>> not require ICANN to determine whether a registrant is infringing
>> someone's rights. And how is anyone supposed to know whether the way
>> they use a domain infringes the legal rights of a third party -
>> anywhere in the world, under any jurisdiction?  They cannot know this
>> until and  unless someone asserts those rights against them in a legal
>> system which has jurisdiction and can make a legal determination. Or
>> do we want ICANN to be making this determination? Most would agree
>> that we do not. So what is the purpose, other than to invite ICANN to
>> impose controls or regulations on virtually anything that happens on
>> the internet?
>>
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