[registrars] FYI re: Transfers

[Ross Rader]

John Berryhill wrote:

>> when the rules were created the  
>> MEANINGS were clear.
> 
> I promise you that in every contract dispute, both sides are extremely clear
> on what the contract means.  As I mentioned, reasonable minds can differ,
> and frequently do, in good faith.

Problem is, in this instance, the policy as written, was never intended 
to become the policy as applied.

When the task force was documenting the policy, we were told time and 
time again not to sweat the legal stuff because it was always the plan 
to have the ICANN legal staff tighten up the wording during the 
implementation phase. Louis left right around this time and I suspect 
that this detail kind of just got dropped on the floor during the 
transition. I didn't really think twice about it, after all, I was 
generally happy with the language that was in there and not being a 
lawyer, wasn't informed enough to be concerned about the vagueness that 
you correctly point out.

Anyways the salient point is - the intent of the policy is extremely 
clear and is quite well captured by the document. There were some areas 
that were overlooked, but these can be changed through the PDP. While 
there might be more than one way to interpret the transfer policy, there 
was only one intent of the GNSO. Its not like this is the U.S. 
Constitution and we have to guess at the state of mind of the drafters 
was. I'm still around, as are the others, you can simply ask.

For instance, around expiries, we were very simply giving Louis 
instructions that Registrars can't deny a domain transfer for a name 
that has expired, unless the registrant didn't pay for the just-previous 
registration period for some reason (which is mostly a boundary case - 
registrations don't make it through an entire year or more without a 
bill being paid by someone at some point).

This is the policy. It is very clear in my mind. What isn't clear were 
the words that were used to express the policy. Per the original 
agreement we had with staff, I think its perfectly reasonable for them 
to clean up the vagueness outside of a PDP or community consultation 
provided that the changes are consistent with the original policy 
intent. At the very least, this would be more productive than paying 
lawyers to talk circles around one another.

-- 
Regards,

Ross Rader
Director, Retail Services
Tucows Inc.

http://www.domaindirect.com
t. 416.538.5492