[Gnso-newgtld-wg-wt2] Work Track 2: Single Base Agreement
Michael Flemming
flemming at brightsconsulting.com
Mon Oct 3 04:35:38 UTC 2016
Hi Kevin,
Thanks for the feedback. Perhaps my wording could've been chosen better,
but I do think
they were equipped. I do not mean any offense in regards to that. The
response timing we
received from ICANN in the past in regards to contracts was timely even if
the overall process
was slower than expected. I believe ICANN took necessary measures to have
the legal staff
and advice to negotiate agreements.
Just as you say, not understanding/feeling. It is at times difficult for
brands to get ICANN
to realize why a certain provision is not necessary applicable to brands.
ICANN will provide
the reasoning behind the provision and how it applies to gTLDs overall, and
then brands will
provide their response. To me, it seems to be a longer conversation than
necessary.
Michael Flemming
On Mon, Oct 3, 2016 at 1:26 PM, Kevin Kreuser <kkreuser at godaddy.com> wrote:
> As the guy that negotiated every RA with every applicant and drafted the
> final version of Spec 13, I disagree with Michael that ICANN wasn't
> equipped to understand brand concerns - it was a case, as is always case
> for ICANN, of not feeling
>
> *kevin kreuser*
>
> *senior assistant general counsel | **Go**Daddy™*
>
> *kkreuser at godaddy.com <kkreuser at godaddy.com>*
>
> *602-420-4121 <602-420-4121> (o) / 480-258-7957 <480-258-7957> (m)*
>
>
>
>
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> On Oct 2, 2016, at 9:09 PM, Greg Shatan <gregshatanipc at gmail.com> wrote:
>
> I have to agree with Rubens and Michael, with the following additional
> thoughts:
>
> Specification 13 was an after the fact "patch" on the Registry Agreement,
> because it was fundamentally not "fit for purpose" for .Brand registries.
> There's no reason to perpetuate a patch, which effectively changes the
> agreement anyway, when we have an opportunity to create an appropriate
> agreement for these registries.
>
> Having a modest number of differing agreements sharing many common
> provisions is not going to cause "massive overhead" for anybody. This
> might a valid criticism if we were talking about hundreds of individual
> agreements drafted and negotiated from scratch or from totally different
> templates (as might happen if the applicants, rather than ICANN, submitted
> the first drafts of their agreements), but that's not what anybody's
> suggesting.
>
> Greg
>
>
> On Sunday, October 2, 2016, Michael Flemming <flemming at brightsconsulting.
> com> wrote:
>
>> From my own personal opinion and not in my role as Co-Chair, I reply with
>> the following.
>>
>> I will have to echo Rubens in my opinion. I believe there is a firm
>> demand for separate agreements
>> because there exist many provisions within the 2012 RA that do not take
>> into account the needs of
>> different categories. Moreover, noting that the 2012 RA was built around
>> the one-size fits all gTLD
>> basis, it was not until we began asking ICANN for certain
>> provisions/exemptions to the RA because
>> they didn't apply to the outlook of that TLD that we saw progress in this
>> area. I think that I can argue
>> the point that ICANN has been very uncooperative in this area because
>> they still think all TLDs must
>> operate around the same outlook. Whenever I have a conversation with
>> ICANN about dotBrands, the
>> response is that ICANN has little experience, contractually and on a
>> service level, with TLDs other than
>> gTLDs that operated until the New gTLD program. We are seeing the
>> development of new categories,
>> that I believe we already have a consensus for in the overall working
>> group, that have large issues
>> that do not pertain to other categories. While it is likely that
>> potential category based RAs will have a
>> similar model and base for technical standards, it is necessary to build
>> the contract with the outlook of
>> the TLD in mind. Keeping the same contract we have puts forth too much
>> constraint on the TLDs and
>> limits the cooperation of ICANN to recognize how TLDs operate differently
>> in the scope of their category.
>> Furthermore, as Rubens pointed out, most TLDs will likely switch over to
>> the separate agreements
>> per their respective category in the future.
>>
>> Regards,
>>
>> Michael Flemming
>>
>> On Mon, Oct 3, 2016 at 8:57 AM, Rubens Kuhl <rubensk at nic.br> wrote:
>>
>>>
>>> On Oct 2, 2016, at 8:21 PM, Zylstra, Raymond <
>>> Raymond.Zylstra at neustar.biz> wrote:
>>>
>>> Dear all,
>>> I wanted to start the discussion on a question that was raised about the
>>> Base Agreement just prior to the end of the 22 September call – the
>>> question of ‘does a single base agreement make sense for all types of
>>> registries?’ and the need to have different agreements for different
>>> categories of TLDs.
>>>
>>> I do not believe that the concept of multiple Registry Agreements is
>>> warranted. This is an important topic and I believe the discussion should
>>> be broader than simply answering the question as posed. Provided below are
>>> some issues I believe we should consider in order to respond to the
>>> question.
>>>
>>> • Predictability – This is something that is often
>>> talked about, and also applies in this case. As an end user should I expect
>>> the same service levels and requirements of TLDs as I navigate the
>>> internet? I would argue yes. It seems that we could end up in a situation
>>> where 2012 Registry Operators have very different obligations.
>>>
>>>
>>> That is already not the case, due to the existence of ccTLDs and
>>> gTLDs... 2012 Registry Operators would possibly move to the new portfolio
>>> of agreements.
>>>
>>> • Level Playing Field – A level playing field is
>>> important for 2012 Applicants and Registry Operators and those future
>>> Applicants; introducing a different Registry Agreement for future
>>> Applicants may unfairly disadvantage those who have signed the 2012
>>> Registry Agreement.
>>>
>>>
>>> ICANN has moved most gTLDs with prior agreements to agreements that look
>>> a lot like 2012 RA, so that also doesn't hold.
>>>
>>> • Status Quo – We currently have a Registry
>>> Agreement, albeit with additional Specifications, under which the various
>>> categories of TLDs can, and do, operate. While there are certainly
>>> situations where the Registry Agreement is not ideal, it is functional;
>>> there are things about it which we may not like, but they are not show
>>> stoppers.
>>>
>>>
>>> Some situations would be show stoppers if ICANN actually exercised
>>> those, so that is still to be seen...
>>>
>>> • Where Does the Problem Lie – As with many of you I
>>> have experienced many operational issues dealing with ICANN and their lack
>>> of understanding of the diverse business models for different TLDs. I don’t
>>> believe that having a different Registry Agreement will solve that issue,
>>> rather it is a case of working with ICANN to resolve those problems, and I
>>> for one have had some success with this.
>>>
>>>
>>> Even if some success was achieved, that is still more stressful and
>>> costly that it should.
>>>
>>> • Lengthy Process – Without question the development
>>> of, and agreement to, multiple Registry Agreements has the potential
>>> seriously compromise the timelines for the commencement of subsequent new
>>> gTLDs. Further, on the call brands were singled out; however, I am
>>> confident that many Registry Operators could argue some form of unique
>>> requirement which they believe required a unique Registry Agreement.
>>>
>>>
>>> Actually I believe the call mentioned brand and exclusive use TLDs, both
>>> of which already have different specifications. Community TLDs also have a
>>> different specification, and there are also in the 2012 agreement a
>>> different version (not specification) for governmental entities. See
>>> https://www.icann.org/resources/agreement/rio-2014-02-27-en for one
>>> example that this is already in place in the 2012 agreement.
>>>
>>> • Administrative Burden – The introduction of
>>> multiple Registry Agreements and dealing with these new agreements and the
>>> 2012 Registry Agreement will introduce massive overhead for ICANN, Registry
>>> Operators, Applicants, and service providers.
>>>
>>>
>>> I agree with the overhead for ICANN, but not necessarily for ROs,
>>> applicants and SPs; if different agreements come with less requirements,
>>> that can be less overhead for those.
>>>
>>>
>>>
>>>
>>> Rubens
>>>
>>>
>>> _______________________________________________
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>>> Gnso-newgtld-wg-wt2 at icann.org
>>> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg-wt2
>>>
>>
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