[gnso-rds-pdp-wg] IMPROTANT - Action Items and Notes from Next-Generation RDS PDP Working Group Call - 17 May 2017

[Paul Keating]

I don¹t see how this makes a difference.

Your example of a car rental is inapposite.  In your example, the car is
owned by the leasing company, not the renter.  In the domain space, the
domain is ³owned² by the registrant and NOT the registrar (who would be
the car leasing company in your example).  The vehicle ownership is in
fact public record and I could look up and confirm that the car is in fact
owned by the leasing company if I chose to do so.

Same with the phone example.  In that case the phone company has the
EXCLUSIVE right to assign the numbers to you (they previously obtained
this right from the telephone exchange).  No other phone company can
assign this right to you.  You can - but only recently - now port your
number from one company to another.  However, that involves a transfer of
the exclusive right from one company to another - a process that occurs in
the background without you being aware of it.  Domains have no such system
and are completely portable - in fact the registrar cannot object to a
transfer.


There are ample situations in which intangible property rights ownership
is a matter of public record.

And, there are differences of opinion as to whether domains constitute
property or merely a contract right.  The US federal courts have differing
opinions as to bankruptcy courts.  The latter, make for for a great
example.

If domains were merely contract rights as you suggest then upon bankruptcy
of EITHER the registrar or the registrant, the registration contract would
become automatically null and void because it is an executory contract
(one in which performance continues over time as opposed to - for example
- a ³sale² in which once I pay, the deal is done).  The same holds true if
they were licenses.

If such were the case, no bankruptcy court could treat domains as an asset
of the bankruptcy estate.  However, the opposite is in fact the case and
bankruptcy courts universally treat domains as property of the estate.

Another example would be litigation in which control over the domain is
sought.  With very limited exceptions, one cannot force the assignment of
an agreement.  At most they can order it cancelled or order that one party
is the ³real party in interest as THE contracting party².  As such, no
court could require the transfer of a domain name.  However, courts
regularly do allow for such transfers.


And, again, while perhaps interesting to some, none of this has anything
to do with whether or not the historical records are public or not.


Regards,

Paul


On 5/18/17, 10:38 AM, "benny at nordreg.se" <benny at nordreg.se> wrote:

>And here Paul the logic are breaking
>
>A domain are not a property, when registering a domain you only get the
>right to use is as long as you pay a fee for that.
>If you go to lease/rent a car you are not entitled to know who has driven
>it before or what it has been used for.
>Same if someone transfer the user rights for a phonenumber to you, that
>don¹t give you any legal right to know who has used it before
>
>IMHO this is one og the biggest misunderstandings of domains, it is not
>your property as a registrant, its a granted license as long as you pay
>the yearly nothing more nothing less. It¹s pretty simple.
>
> 
>
>--
>Med vänliga hälsningar / Kind Regards / Med vennlig hilsen
>
>Benny Samuelsen
>Registry Manager - Domainexpert
>
>Nordreg AB - ICANN accredited registrar
>IANA-ID: 638
>Phone: +46.42197080
>Direct: +47.32260201
>Mobile: +47.40410200
>
>> On 17 May 2017, at 19:52, Paul Keating <paul at law.es> wrote:
>> 
>> When you go to buy a used car would you think that knowing the history
>>of
>> ownership might be important?
>> 
>> When you buy a house, do you not believe that knowing who the prior
>>owners
>> were and verifying the validity of prior transfers was important?
>> 
>> When dealing with a trademark issue, do you not believe it important to
>>be
>> able to see the registration records and assignment histories?
>> 
>> 
>> Please explain to me what is the difference with a domain name?
>> 
>> 
>> Paul
>> 
>> On 5/17/17, 7:46 PM, "Jeremy Malcolm" <gnso-rds-pdp-wg-bounces at icann.org
>> on behalf of jmalcolm at eff.org> wrote:
>> 
>>> On 17/5/17 9:40 am, Michael Peddemors wrote:
>>>> Yes, this is the common argument, however IMHO this is a red herring..
>>>> There are more efficient ways for 'harvesters' to gain data, and
>>>> others way to prevent such abuse..
>>>> 
>>>> Again, IMHO this argument is another case of impacting the many
>>>> legitimate users, for the sake of a few bad apples..
>>>> 
>>>> And I havent' seen any arguments yet, of a case scenario which can't
>>>> be addressed by other means..
>>> 
>>> So to reverse this, what are the *legitimate* purposes of harvesting?
>>> 
>>> -- 
>>> Jeremy Malcolm
>>> Senior Global Policy Analyst
>>> Electronic Frontier Foundation
>>> https://eff.org
>>> jmalcolm at eff.org
>>> 
>>> Tel: 415.436.9333 ext 161
>>> 
>>> :: Defending Your Rights in the Digital World ::
>>> 
>>> Public key: https://www.eff.org/files/2016/11/27/key_jmalcolm.txt
>>> PGP fingerprint: 75D2 4C0D 35EA EA2F 8CA8 8F79 4911 EC4A EDDF 1122
>>> 
>>> 
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