[registrars] OUTCOMES REPORT OF THE GNSO AD HOC GROUP ON DOMAINNAME TASTING

[elliot noss]

I knew we agreed john! it seems both of us are calling for clarity in  
contract AND clarity and action in enforcement. where there is  
ambiguity there should be formal clarifications issued. that can only  
be a good thing. then we avoid discrepancies between  mr. zupke in  
florida, mr. cole in a udrp proceeding and colonel mustard in the  
kitchen with a .museum!

On Oct 3, 2007, at 11:18 PM, John Berryhill wrote:

>
>
>> No, at the highest level I'm saying that ICANN should properly
>> regulate, enforce or get out of the way.
>
> At the highest level the RAA, as drafted, is not an appropriate  
> tool for
> regulating or enforcing anything.  It is an all-or-nothing  
> proposition.
>
> That's the entire point of the ongoing RAA revision exercise.
>
>> Its not up to me to find ways to
>> enforce the agreement anymore than it is up to you to find
>> ways around it.
>
> Let him who is without sin cast the first stone.
>
> There are legitimate and reasoned differences of interpretation.  The
> problem with an "it means what I say" approach is that if your
> interpretation, however reasonable, does not agree with whomever is  
> assigned
> the role of authoritative interpreter, the RAA entitles ICANN to  
> withdraw
> your accreditation.  There are no other remedies in the document.
>
> Now, last year, we had a situation in which, in one context,  
> certain ICANN
> staff had taken the position that since (a) a domain must be the  
> subject of
> a valid registration contract, and (b) a party cannot contract with  
> itself,
> then it follows:  a registrar cannot register its own domain name.
>
> It was, at the time, a cute intervention on ICANN's part in a UDRP
> proceeding in which the complaint eventually failed, but the  
> reasoning is
> utterly sound, correct, and bore the signature of Tim Cole.  Who  
> could argue
> with that?
>
> The domain name Tucows.com is not compliant with the RAA.  It is  
> registered
> to Tucows, and through Tucows, and it thus cannot be incident to a  
> valid
> registration contract.  So, if it is your job to "find ways to  
> enforce the
> agreement", I will be pleased to see you delete this non-compliant  
> domain
> name immediately.  It might even get a couple of hits a day and be  
> thus
> worth something in a delete auction.
>
> Now, maybe you were in the room in Florida last year when Mike Zupke
> informed those registrars present that ICANN would not enforce the  
> RAA with
> respect to an unspecified set of domain names which a registrar  
> registers to
> itself.  If you were, then, congratulations, you happen to know  
> about this
> particular and vague non-enforcement promise which Mr. Zupke made  
> verbally
> to those who were there.
>
> It just seems fundamentally flawed that the proposition of whether
> Tucows.com is or is not a RAA compliant domain name depends upon  
> whether the
> authoritative view of the RAA is that of Mr. Cole in August or Mr.  
> Zupke in
> October.  Strictly speaking, Mr. Zupke agreed that such names are
> non-compliant, but that there would be no enforcement taken.  This  
> pledge
> presumably is valid as long as Mr. Zupke is in good health and gainful
> employment at ICANN.
>
> The prospect is downright horrific when you go back to the main  
> premise of
> the RAA - i.e. as drafted, a single non-compliant domain name is a
> sufficient ground to have your accreditation revoked.
>
> Yes, in practice ICANN doesn't do that.  But a system of rules  
> should not
> depend upon whether someone charged with enforcement happens to be  
> in a good
> mood on any given day.
>
>