[CPWG] [GTLD-WG] [registration-issues-wg] Further Revised Draft Statement on .ORG Renewal

[George Kirikos]

Doubtful any registry operator is going to give up their precious
presumptive renewal voluntarily, without huge compensation. At some
point in the future, a court might find it's anti-competitive, and fix
ICANN's mistake. But, the US government hasn't shown inclination to
bring such an action to date. Perhaps one day someone will step up and
bring a civil action....

Sincerely,

George Kirikos
416-588-0269
http://www.leap.com/

On Wed, May 1, 2019 at 5:18 PM Jonathan Zuck
<JZuck at innovatorsnetwork.org> wrote:
>
> I might be wrong about this then. Thanks for the citations George. I've known there was a presumption for renewal but believed there was an out for ICANN in extreme circumstances. Perhaps we need to add language to that part of the contract while we can.
>
> Jonathan Zuck
> Executive Director
> Innovators Network Foundation
> www.Innovatorsnetwork.org
>
> ________________________________
> From: GTLD-WG <gtld-wg-bounces at atlarge-lists.icann.org> on behalf of George Kirikos <icann at leap.com>
> Sent: Wednesday, May 1, 2019 12:33:37 PM
> To: CPWG
> Cc: Alan Greenberg
> Subject: Re: [GTLD-WG] [CPWG] [registration-issues-wg] Further Revised Draft Statement on .ORG Renewal
>
> Hi folks,
>
> Jonathan's statement that "ICANN is under no obligation to renew" is
> not supported by any citation, not supported by history, and not
> correct, as one can easily check by reading the draft contract itself:
>
> https://www.icann.org/sites/default/files/tlds/org/org-proposed-renewal-18mar19-en.pdf
>
> "4.2 Renewal. (a) This Agreement will be renewed for successive
> periods of ten (10) years upon the expiration of the initial Term set
> forth in Section 4.1 and each successive Term, unless:..."
>
> (list circumstances not at ICANN's discretion, e.g. if Registry
> operator breaches and doesn't cure that breach, etc.)
>
> Which part of "will be renewed" isn't clear?
>
> Section 4.3 talks about termination, and again it's not at ICANN's discretion.
>
> Combine the above with Section 5.4, which ensures "specific
> performance" of the contract, and it's clear that ICANN is under an
> obligation to renew:
>
> "5.4 Specific Performance. Registry Operator and ICANN agree that
> irreparable damage could occur if any of the provisions of this
> Agreement was not performed in accordance with its specific terms.
> Accordingly, the parties agree that they each shall be entitled to
> seek from the arbitrator or court of competent jurisdiction specific
> performance of the terms of this Agreement (in addition to any other
> remedy to which each party is entitled)."
>
> One need only look at the market cap of Verisign. It wouldn't be so
> high if it was reflecting just a 6 year or 10 year contract term. That
> presumptive renewal was a major policy blunder by ICANN, as I noted in
> my own public comments.
>
> https://mm.icann.org/pipermail/comments-org-renewal-18mar19/2019q2/003178.html
>
> If ICANN wasn't under any obligation to renew, certainly it would have
> held competitive tenders by now, which they've never done since
> entering into these types of contracts.
>
> Sincerely,
>
> George Kirikos
> 416-588-0269
> http://www.leap.com/
>
> On Wed, May 1, 2019 at 4:49 AM Jonathan Zuck
> <JZuck at innovatorsnetwork.org> wrote:
> >
> > All,
> >
> > I am attaching another, further revised draft public comment on the .ORG renewal, after sifting through the various recent conversations on the list.   I will try to circulate a redline in the morning, New York time, but can't right now.
> >
> > I thought about including something on UA, but for .ORG and in the absence of proposed language, I did not see the obvious hook in this statement to bring that concept in.
> >
> > Best regards,
> >
> > Greg
> >
> > Greg Shatan
> > greg at isoc-ny.org
> > President, ISOC-NY
> > "The Internet is for everyone"
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> > CPWG at icann.org
> > https://mm.icann.org/mailman/listinfo/cpwg
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