[CCWG-ACCT] Board comments on the Mission statement

David Post david.g.post at gmail.com
Mon Nov 23 15:37:21 UTC 2015


At 10:03 AM 11/23/2015, Burr, Becky wrote:

>Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence?

No, I don't think this was out of scope, because 
it concerns the "registration" of the name and 
the manner in which THE NAME is used.  3.7.7.9 
does not say, in my opnion, that the registrant 
has to promise that it is not doing anything at a 
website that is infringing; the promise is that 
the name is not being used in an infringing manner.

D

At 10:03 AM 11/23/2015, 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 
>/ <http://www.neustar.biz>neustar.biz
>
>From: Alan Greenberg 
><<mailto:alan.greenberg at mcgill.ca>alan.greenberg at mcgill.ca>
>Date: Sunday, November 22, 2015 at 10:06 PM
>To: "Silver, Bradley" 
><<mailto:Bradley.Silver at timewarner.com>Bradley.Silver at timewarner.com>, 
>Greg Shatan 
><<mailto:gregshatanipc at gmail.com>gregshatanipc at gmail.com>, 
>"Mueller, Milton L" <<mailto:milton at gatech.edu>milton at gatech.edu>
>Cc: Accountability Community 
><<mailto:accountability-cross-community at icann.org>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 Greg̢۪s 
>>resposponse below.  Milton̢۪s position that 
>>an existinting provision of the RAA is out of 
>>the scope of ICANNâ€ââ„¢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 
>>ICANN̢۪s missionion 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: 
>><mailto:accountability-cross-community-bounces at icann.org>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 <<mailto:milton at gatech.edu>milton at gatech.edu> wrote:
>>
>>
>> > -----Original Message-----
>> >
>> > See section 3.7.7 of the registrar accreditation agreement (RAA):
>> > 
>> <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=>https://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en 
>>
>> >
>> > 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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