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Well, this is illuminating ... <br><br>
I take it that at least you and Greg (and perhaps others) think that it
is within ICANN's power to enforce, via its power over the DNS entries,
local pornography laws, or consumer protection laws, or defamation laws,
or ... on the grounds that registrants have to promise not to infringe
any rights of any third parties in any activity they undertake "on
the website to which the domain points." So ICANN can set up a
Pornography Dispute Resolution Procedure, a Consumer Protection Dispute
Resolution Procedure, a Defamation Dispute Resolution Procedure, to
enforce these promises that registrants have supposedly made and to take
down violators. <br><br>
My response is: I don't think they have that power at present, I
don't think they have had that since the beginning of (ICANN) time, and I
sure as heck don't want to them to have it once they are in control of
the root and USG oversight is removed. <br><br>
David<br><br>
<br>
At 10:51 AM 11/23/2015, Silver, Bradley wrote:<br>
<blockquote type=cite class=cite cite="">David, <br>
<br>
That’s an overly narrow reading of RAA 3.7.7.9 - its not only that
the registration of the Registered Name infringes or its “direct
use”, but also that the manner in which is <i>indirectly</i> is
used. I can’t see how the “indirect” use of the domain
cannot also be attributed to infringing uses on the website to which the
domain points. If that’s not at least an “indirect” use, I
don’t know what is. While I agree with your conclusion, I don’t
agree with the reasoning, and I expect there are others (like Milton) who
would like to see the clear meaning of the language of 3.7.7.9 changed
through the application of the “no regulation” sentence. <br>
<br>
Bradley<br>
<br>
<b>From:</b> David Post
[<a href="mailto:david.g.post@gmail.com" eudora="autourl">
mailto:david.g.post@gmail.com</a>] <br>
<b>Sent:</b> Monday, November 23, 2015 10:37 AM<br>
<b>To:</b> Burr, Becky<br>
<b>Cc:</b> Alan Greenberg; Silver, Bradley; Greg Shatan; Mueller, Milton
L; Accountability Cross Community<br>
<b>Subject:</b> Re: [CCWG-ACCT] Board comments on the Mission
statement<br>
<br>
At 10:03 AM 11/23/2015, Burr, Becky wrote:<br><br>
<br>
Are we seriously arguing that RAA 3.7.7.9 is outside the picket
fence? <br><br>
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.<br><br>
D<br><br>
At 10:03 AM 11/23/2015, Burr, Becky wrote:<br><br>
<br>
Are we seriously arguing that RAA 3.7.7.9 is outside the picket
fence? <br><br>
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:<br>
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.<br>
Here it is in the 1999 RAA:<br>
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.<br><br>
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 ICANNâs Mission.<br><br>
<br>
J. Beckwith Burr <br>
Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer<br>
1775 Pennsylvania Avenue NW, Washington D.C. 20006<br>
Office: +1.202.533.2932 Mobile: +1.202.352.6367 /
<a href="http://www.neustar.biz">neustar.biz</a><br><br>
From: Alan Greenberg
<<a href="mailto:alan.greenberg@mcgill.ca">alan.greenberg@mcgill.ca</a>
><br>
Date: Sunday, November 22, 2015 at 10:06 PM<br>
To: "Silver, Bradley"
<<a href="mailto:Bradley.Silver@timewarner.com">
Bradley.Silver@timewarner.com</a>>, Greg Shatan
<<a href="mailto:gregshatanipc@gmail.com">gregshatanipc@gmail.com</a>
>, "Mueller, Milton L"
<<a href="mailto:milton@gatech.edu">milton@gatech.edu</a>><br>
Cc: Accountability Community
<<a href="mailto:accountability-cross-community@icann.org">
accountability-cross-community@icann.org</a>><br>
Subject: Re: [CCWG-ACCT] Board comments on the Mission statement<br><br>
I rarely fill people's mailboxes just to do this, but in this
case;<br><br>
+1<br><br>
Alan<br><br>
<br>
At 22/11/2015 08:31 PM, Silver, Bradley wrote:<br><br>
<br>
I want to echo and support Gregâs resposposponse below.
Miltonâs position that an en existinting provision of the RAA is out
of the scope of ICANNâââ¢s mission is illuminating. sp; I had
been operating on the (hopeful) presumption that what we were attempting
to do was find a way to describe ICANNâs missionion in a manner that
refleflects 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. <br>
<br>
From:
<a href="mailto:accountability-cross-community-bounces@icann.org">
accountability-cross-community-bounces@icann.org</a> [
<a href="mailto:accountability-cross-community-bounces@icann.org" eudora="autourl">
mailto:accountability-cross-community-bounces@icann.org</a>] On Behalf Of
Greg Shatan<br>
Sent: Sunday, November 22, 2015 3:01 AM<br>
To: Mueller, Milton L<br>
Cc: Accountability Cross Community<br>
Subject: Re: [CCWG-ACCT] Board comments on the Mission statement<br>
<br>
Milton,<br>
<br>
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.<br>
<br>
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?<br>
<br>
Thanks.<br>
<br>
Greg<br>
<br>
On Sat, Nov 21, 2015 at 5:56 PM, Mueller, Milton L
<<a href="mailto:milton@gatech.edu">milton@gatech.edu</a>>
wrote:<br><br>
<br>
> -----Original Message-----<br>
><br>
> See section 3.7.7 of the registrar accreditation agreement
(RAA):<br>
>
<a href="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</a>
<br>
><br>
> 3.7.7.9 The Registered Name Holder shall represent that, to the best
of the<br>
> Registered Name Holder's knowledge and belief, neither the
registration of<br>
> the Registered Name nor the manner in which it is directly or
indirectly used<br>
> infringes the legal rights of any third party.<br><br>
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?<br><br>
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