[CCWG-ACCT] Board comments on the Mission statement

Greg Shatan gregshatanipc at gmail.com
Mon Nov 23 21:05:43 UTC 2015


David,

The line you are drawing is not accurate and does not reflect current
reality or past practice.  You are trying to move a line, not "preserve"
it.  Your interpretation of what it means for a domain name to be "directly
or indirectly used" flies in the face of the UDRP, among other things.  It
is clear that the manner in which a domain is used must look at the website
associated with that domain name.  Indeed the UDRP is set up so that the
registration alone, without use, is generally insufficient to bring a UDRP
case

If you are going to try and rewrite and re-interpret 3.7.7.9 to fit your
narrow definition of scope, that is completely outside what we can or
should be doing in this group.

Greg

On Mon, Nov 23, 2015 at 11:04 AM, David Post <david.g.post at gmail.com> wrote:

> 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 <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.Â
> 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:
> +1.202.533.2932Â  Mobile: +1.202.352.6367 / neustar.biz
> <http://www.neustar.biz>
> From: Alan Greenberg <alan.greenberg at mcgill.ca > Date: Sunday, November
> 22, 2015 at 10:06 PM To: "Silver, Bradley" < Bradley.Silver at timewarner.com>,
> Greg Shatan <gregshatanipc at gmail.com >, "Mueller, Milton L" <
> milton at gatech.edu> Cc: Accountability Community <
> 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.Â
> Â  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
> <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.Â
> 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?  Thanks.  Greg  On Sat, Nov 21, 2015
> at 5:56 PM, Mueller, Milton L <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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> *******************************
> 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
> <http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0>
> music http://tinyurl.com/davidpostmusic publications etc.  http://www.davidpost.com
>
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