[registrars] FYI re: Transfers

[elliot noss]

john, with respect, this is nonsense. when the rules were created the  
MEANINGS were clear. you identify very technical, very semantic  
arguments. we are not talking about interpreting the old testament in  
aramaic. the people involved are almost all still in the process. the  
FAQ on the ICANN site references this specifically!

anyone can argue anything, especially when there is no enforcement.  
the meaning was clear when the policy was enacted and we had clear  
abuse of the policy, followed by a long period of non-enforcement and  
NOW an ex poste facto legalistic rationalization.

it is also just flat wrong to say the only way to interpret is to  
litigate. as I imagine you know, the most common method of resolving  
statutory ambiguity is to issue interpretations. the next most common  
is to pass regulations. ICANN is not a legislature. issuing  
interpretations is not only completely appropriate, to take any other  
path ("let's leave it to the courts to interpret") would be both  
wrong in spirit and have the effect of slowing any kind of effective  
policy-making to a halt. issuing interpretations should be done on a  
more regular basis AND only when there is fair ambiguity causing  
confusion in the drafting.

john, one of the things (among many) that I love about you is that  
you do not believe in litigation for litigation sake. I am surprised  
to hear you say what you did below.

Regards

On Sep 26, 2007, at 6:28 PM, John Berryhill wrote:

>
>
>
>> are you saying here that in your view the two behaviors referenced  
>> in the
>> ICANN advisory, namely i) denying transfers in the grace period  
>> and ii)
>> denying transfers for any change in whois information, are allowed  
>> for in
>> the current policy? or are you saying they should be?
>
> To be clear, I am not purporting to interpret the various relevant  
> contracts
> for another party.  The policy is open to interpretation in both  
> instances.
>
> (i)  Transfer during auto-renew:
>
> Looking at the denial prohibition post-expiration, I have already  
> discussed
> the inherent problems with the wording here:
>
> *  Nonpayment for a pending or future registration period
>
>
> However, the policy further clarifies:
>
> "Hence, in the event of a dispute over payment, the Registrar of  
> Record must
> not employ transfer processes as a mechanism to secure payment for  
> services
> from a Registered Name Holder. Exceptions to this requirement are as
> follows:
>
>     (i) In the case of non-payment for previous registration period 
> (s) if
> the transfer is requested after the expiration date, or
>
>     (ii) In the case of non-payment of the current registration  
> period, if
> transfer is requested before the expiration date."
>
> Both of these can be read to say that a Registrar may deny a  
> transfer during
> the auto-renew grace period if that transfer is requested after the
> expiration date.
>
> But the larger issue here is the continual dodging of who is the  
> "Registered
> Name Holder" after expiration of a domain name.
>
> (ii)  Transfer within 60 days of registrant change
>
> This part is absolutely less ambiguous:
>
> "8 A domain name is in the first 60 days of an initial registration  
> period.
>
> 9 A domain name is within 60 days (or a lesser period to be  
> determined)
> after being transferred (apart from being transferred back to the  
> original
> Registrar in cases where both Registrars so agree and/or where a  
> decision in
> the dispute resolution process so directs)."
>
> Let's look at 8.  What is "an initial registration period"?  If you
> registered a domain name 6 months ago, sold me the domain name last  
> week,
> when did my "initial registration period" begin?
>
> You are interpreting 8 to refer to the registry creation date for  
> the domain
> name, but you are not explaining why that is the only way to read  
> paragraph
> 8.  One way to tell what things say is to consider what they DON'T  
> say.
> Paragraph 8 refers to "an" initial registration period, which  
> implies that a
> domain name may have more than one "initial registration period",  
> because it
> sure as heck doesn't say "THE" initial registration period.
>
> Then we have paragraph 9.  It states that a registrar transfer may  
> be denied
> within sixty days "after being transferred".  It does not say  
> "after being
> transferred from another registrar".  It is unconditional as to  
> what sort of
> "transferred" is being referenced, and it parenthetically refers to an
> exception to the exception involving a particular registrar transfer
> scenario.
>
>
> Now, Elliot, I am absolutely certain that the things I have  
> mentioned are
> capable of other interpretations, and I will admit to writing this  
> in a
> rush.  What I would suggest to you that the issue here is not which
> interpretation is "correct".  I am also not suggesting that any  
> possible
> interpretation is in any sense more reasonable than any other
> interpretation. The ONLY mechanism for determining the "correct"
> interpretation of ambiguous contract terms is through litigating  
> them.  But
> it is important not to confuse an interpretation of a policy with some
> notion of what the policy IS - particularly where you have policies  
> that
> conflict with each other in interesting ways.  I do not believe  
> that you
> would agree that ICANN is the last word on contract interpretation.
>
> Now, concerning being strip-searched whilst shopping, as flattered  
> as I may
> be that a discussion between us conjures up this image in your  
> mind, I would
> point out that when one walks into a retail establishment, a number of
> policies are generally posted in a conspicuous place, and relate to  
> things
> like bag inspection.  Where one has consented to a policy that is not
> unreasonable, parties should be free to contract for services.
>
>
>