[Gnso-ppsai-pdp-wg] definitions section

Tue Dec 1 23:27:21 UTC 2015

Folks

First, I think James and Steve have come up with better language - so thank you.

And Paul - my interpretation is not that ICANN is trying to regulate law firms qua law firms.  What we are talking about is that when law firms choose to assume the role of management of domain names on behalf of clients.  In that case, they must do in in accordance with rules that have been developed to manage domain names - and that means compliance with ICANN (or what their cc manager rules).  If you choose to drive a car in the US, then you drive on the right hand side of the road and abide by the relevant set of rules.  If you cross the border into Canada, you drive on the other side of the road and in compliance with relevant Canada law.  In both cases, you are still a lawyer - and bound by relevant rules for driving in that jurisdiction ( and perhaps unhappily, how the local cops view your driving habits).

Holly

On 2 Dec 2015, at 7:58 am, McGrady, Paul D. <PMcGrady at winston.com> wrote:

> Thanks James.  While it is possible that a grumpy registrar may attempt to stretch in order to harass a law firm on this subject (especially if they think that lawyers haven’t always been particularly nice to them over the  years), I wouldn’t want to be counsel for the party that goes in to tell a U.S. federal judge that ICANN has the power to regulate law firms via registrars and that such regulation is at the discretion of how each and every a registrar individually reads ICANN’s policy.
>  
> Best,
> Paul
>  
> From: James M. Bladel [mailto:jbladel at godaddy.com] 
> Sent: Tuesday, December 01, 2015 2:47 PM
> To: McGrady, Paul D.
> Cc: Metalitz, Steven; gnso-ppsai-pdp-wg at icann.org
> Subject: Re: [Gnso-ppsai-pdp-wg] definitions section
>  
> Paul -
>  
> Acknowledged.  As long as folks are satisfied that they can protect themselves from being declared an illicit P/P service by their Registrar (or changing Registrars if they are), then I'm good.
>  
> I think Im Ok with Steve's latest language, but I haven't seen his revised footnote.  i'm working via mobile device now, so it's possible that I'm just not able to view it.
> 
> Thank you,
>  
> J.
> ____________
> James Bladel
> GoDaddy
> 
> On Dec 1, 2015, at 14:43, McGrady, Paul D. <PMcGrady at winston.com> wrote:
> 
> Thanks James. Since the Complainant is a matter of public record in UDRP proceedings, I guess I don’t see why there would be a corresponding need to shield the identity following a transfer order.  If it is just a matter of it being easier to have it transferred to a firm’s account with the firm as registrant in the WHOIS rather than to a client account with the client as registrant in the WHOIS, I guess that is easily handled by law firms being careful to get accounts set up for their clients in advance. 
>  
> From my point of view, it looks like we have a “go” then on the latest iteration of Vicky/Steve’s proposed language.    
>  
> Best,
> Paul
>  
>  
> From: James M. Bladel [mailto:jbladel at godaddy.com] 
> Sent: Tuesday, December 01, 2015 2:36 PM
> To: McGrady, Paul D.
> Cc: Metalitz, Steven; gnso-ppsai-pdp-wg at icann.org
> Subject: Re: [Gnso-ppsai-pdp-wg] definitions section
>  
> Hi Paul -
>  
> It would not prohibit the implementation of a UDRP.  However, the notice of a UDRP decision, accompanied by a request to transfer the domain to a law firm representing the prevailing party, could be interpreted by a Registrar that they should now "know" that this particular registrant was acting on behalf of other entities.
> 
> Thank you,
>  
> J.
> ____________
> James Bladel
> GoDaddy
> 
> On Dec 1, 2015, at 14:30, McGrady, Paul D. <PMcGrady at winston.com> wrote:
> 
> James, I guess I don’t understand what part of this would prohibit a registrar from implementing a UDRP decision.  Can you explain?
>  
> Best,
> Paul
>  
>  
> From: gnso-ppsai-pdp-wg-bounces at icann.org [mailto:gnso-ppsai-pdp-wg-bounces at icann.org] On Behalf Of James M. Bladel
> Sent: Tuesday, December 01, 2015 2:07 PM
> To: Metalitz, Steven
> Cc: gnso-ppsai-pdp-wg at icann.org
> Subject: Re: [Gnso-ppsai-pdp-wg] definitions section
>  
> Thanks for launching this thread, Steve.  I know time is short so I'll just weigh in with two quick points:
>  
> (1)  I believe we planned to include a footnote with Implementation Guidance that "knowingly" in this context meant "active knowledge" on the part of the Registrar, via a report received from ICANN or elsewhere, and not in reference to any mandatory "black list" of prohibited registrants that would be checked prior to issuing any registrations, and
>  
> (2) I am still concerned that this allows Registrars (or ICANN Staff) to interpret the requirement to mean that becoming aware of law firms or web hosts acting on behalf of customers unknown to the Registrar (e.g. implementing a UDRP decision) would require the Registrar to block future registrations from that entity.  Granted, it would not be in a Registrar's best interests to act against its own customers in this manner, but some might choose (or feel pressured by Compliance) to do so.
> 
> Thank you,
>  
> J.
> ____________
> James Bladel
> GoDaddy
> 
> On Dec 1, 2015, at 10:36, Metalitz, Steven <met at msk.com> wrote:
> 
> PPSAI WG,
>  
> Per request on this morning’s call, attached is a redline of the passage from the “Definitions” section of the recommendations (page 7 of the clean version circulated by Mary).  This is the proposal I asked James to consider accepting. I think this proposal minimizes the risk of conflict between our recommendations and the RAA.  Per Graeme’s request on the call, any feedback welcomed today.   Thanks!
>  
> Steve Metalitz
>  
>  
> From: gnso-ppsai-pdp-wg-bounces at icann.org[mailto:gnso-ppsai-pdp-wg-bounces at icann.org]On Behalf Of Mary Wong
> Sent: Monday, November 30, 2015 8:30 PM
> To: gnso-ppsai-pdp-wg at icann.org
> Subject: [Gnso-ppsai-pdp-wg] FW: Final Report with updated recommendations, and next steps
>  
> Hello everyone,
>  
> Forwarding Vicky’s message (below), which does not seem to have made it to the list.
>  
> From: Victoria Sheckler <vsheckler at riaa.com>
> Date: Monday, November 30, 2015 at 16:02
> To: "gnso-ppsai-pdp-wg at icann.org" <gnso-ppsai-pdp-wg at icann.org>, Mary Wong <mary.wong at icann.org>
> Cc: "Steven J. Metalitz (met at msk.com)" <met at msk.com>
> Subject: RE: [Gnso-ppsai-pdp-wg] Final Report with updated recommendations, and next steps
>  
> In reviewing the recommendations on p.7, it seems to me that the third sentence of the section copied below is overbroad and unnecessary for the purpose here. 
>  
> o        “Registrars are not to knowingly accept registrations from privacy or proxy service providers who are not accredited through the process developed by ICANN. For non-accredited entities registering names on behalf of third parties, the WG notes that the obligations for Registered Name Holders as outlined in section 3.7.7 of the 2013 RAA would apply[1]. In this regard, the WG notes that the consequence of this recommendation is that an accredited privacy or proxy service provider that is in good standing with ICANN will therefore not be liable for the actions of their customers. Similarly, an individual or entity that is acting as a privacy or proxy service, but that is not accredited by ICANN or not in good standing, will be considered the registrant of record, and thus responsible for the domain name registration in question.”
> 
>  
> It is not our place to say whether an accredited p/p provider is or is not liable for the actions of its customers.  While one would think that in most cases, the accredited p/p provider would not be, I can envision scenarios where the p/p provider would be liable.   Given this, either the last two sentences of the section above should be deleted (as the second sentence I think captures the rule for non-accredited entities acting as a p/p service) or the section should be revised to read as follows:
>  
> o        “Registrars are not to knowingly accept registrations from privacy or proxy service providers who are not accredited through the process developed by ICANN. For non-accredited entities registering names on behalf of third parties, the WG notes that the obligations for Registered Name Holders as outlined in section 3.7.7 of the 2013 RAA would apply[2]. In this regard, the WG notes that an individual or entity that is acting as a privacy or proxy service, but that is not accredited by ICANN or not in good standing, will be considered the registrant of record.”
> 
>  
> MARY – since my posts don’t always make it to the entire list, can I ask that you please forward it on if it looks like it didn’t go through?  Thanks! - Vicky
> 
> 
> 
> 
> <DRAFT language (7262652).docx>
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> [1] Section 3.7.7.3 of the 2013 RAA reads as follows: “Any Registered Name Holder that intends to license use of a domain name to a third party is nonetheless the Registered Name Holder of record and is responsible for providing its own full contact information and for providing and updating accurate technical and administrative contact information adequate to facilitate timely resolution of any problems that arise in connection with the Registered Name.”
> [2] Section 3.7.7.3 of the 2013 RAA reads as follows: “Any Registered Name Holder that intends to license use of a domain name to a third party is nonetheless the Registered Name Holder of record and is responsible for providing its own full contact information and for providing and updating accurate technical and administrative contact information adequate to facilitate timely resolution of any problems that arise in connection with the Registered Name.”
> 
> The contents of this message may be privileged and confidential. Therefore, if this message has been received in error, please delete it without reading it. Your receipt of this message is not intended to waive any applicable privilege. Please do not disseminate this message without the permission of the author._______________________________________________
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