[CCWG-ACCT] Board comments on the Mission statement
David Post
david.g.post at gmail.com
Mon Nov 23 16:04:10 UTC 2015
At 10:42 AM 11/23/2015, Greg Shatan wrote:
>Clearly, this shows that this is an attempt to
>rewrite ICANN's mission, rather than an attempt to avoid mission creep.
>Just like 3.7.7.9 has been with us since the
>beginning of (ICANN) time, the policy disputes
>that underlie this attempt have been with us
>since the beginning of (ICANN) time.
>The Accountability effort is an inappropriate
>place to try and score points in these disputes. Â
>It's both good and unfortunate that this is
>becoming clear -- good that it is becoming
>clear, unfortunate because of the timing.
I (strongly) disagree. I think that it's quite
critical that we try to articulate why things
like 3.7.7.9 are IN SCOPE, so that we allow ICANN
to continue to do those things BUT ONLY those things.
3.7.7.9 concerns the registration and use of names.
"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 ..."
The "it" is important. When I registered
davidpost.com, I did NOT make a promise to the
registry, at ICANN's behest, that I would not do
anything at the website I operate at that address
that "infringes the legal rights of any third
party." I might defraud buyers, or defame my
political opponents, or infringe someone's
copyright - none of which is of ICANN's concern.
What I did promise was that my use of the
davidpost.com name would not infringe the rights
of any third party - that the name
"davidpost.com," for instance, does not infringe
someone's trademark or copyright rights.
This is precisely the line we're trying to
preserve. ICANN CAN regulate the names (i.e.
what strings can be used as names, who gets which
names) - of course, only with policies "developed
through a bottom-up, consensus-based
multi-stakeholder process" - but NOT what people do with the names.
David
>Greg
>
>On Mon, Nov 23, 2015 at 10:03 AM, Burr, Becky
><<mailto:Becky.Burr at neustar.biz>Becky.Burr at neustar.biz> wrote:
>Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence? Â
>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:
><tel:%2B1.202.533.2932>+1.202.533.2932Â Mobile:
><tel:%2B1.202.352.6367>+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 Gregâ€ââ„¢s
>>response below. Milton’s position thathat
>>an existing provision of the RAA is out of the
>>scope of ICANN’s mission is
>>illuminating. I had been operating on the
>>(hhopeful) presumption that what we were
>>attempting to do was find a way to describe
>>ICANN̢۪s mission in a manner that reflects
>>its current activitieties, 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.Â
>>Â
>>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
>>Â
>>Milton,
>>Â
>>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.
>>Â
>>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?
>>Â
>>Thanks.
>>Â
>>Greg
>>Â
>>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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*******************************
David G Post - Senior Fellow, Open Technology Institute/New America Foundation
blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post
book (Jefferson's Moose) http://tinyurl.com/c327w2n
music http://tinyurl.com/davidpostmusic
publications etc. http://www.davidpost.com
*******************************
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