[Date Prev][Date Next][Thread Prev][Thread Next][Date Index][Thread Index]

Re: Section 9 of the proposed Registry Accreditation policy, Objections

Joop and all,

  We completely agree with you with respect to this section, Section
9 of the "Registry Accreditation Guidelines".  My question to you is have
you sent in your comments to the ICANN on this?  IF not, I am copying this
to them.  This section is EXTREMELY and UNDULY HARSH and should
be stricken from the guidelines altogether in our opinion.

Joop Teernstra wrote:

 Objections from the Domain Name Owners' point of view:

Section 9 of ICANN's proposed "Registry Accreditation Guidelines"  contains a number of provisions that have been "borrowed" from the WIPO recommendations and that are, in the view of DADNO, unduly harsh or even oppressive to the Domain Name end user.

9. Business Dealings, Including with SLD Holders.

                    a. The registrar would undertake to abide by a Code of Conduct for DNS Registrars, requiring fair dealings with SLD holders. ICANN
                    anticipates that, over time, an appropriate Code of Conduct will be developed by an organization of registrars and registry administrators that
                    will carry the principal responsibility for enforcement. Until such a Code is developed, in order to facilitate the early introduction of a
                    competitive registrar system, registrars would abide by an Interim Code of Conduct for DNS Registrars to be issued by ICANN, after public
                    notice and comment according to its Bylaws.

                    b. The registrar would undertake to abide by all applicable laws and governmental regulations.

                    c. The registrar would not represent to any actual or potential SLD holder that the registrar enjoys access to a registry for which the registrar
                    is accredited superior to that of any other accredited registrar.

                    d. The registrar would not activate any SLD registration unless it is satisfied that it has received payment of its registration fee.

                  e. The registrar would register SLDs to SLD holders only for fixed periods. At the conclusion of the registration period, failure to pay a
                    renewal fee within the time specified in a second notice or reminder would result in cancellation of the registration.
DADNO comment:
(e. This is harsh and not conducive to investing in an on-line business. Cancellation of a Domain Name, especially if this would involve permanent loss, due to other other parties "grabbing" the name on cancellation,  will wipe out all goodwill and connections, links, etc. of an on-line business. It is , in fact, the death of such a business.
Domain Name registrants need a specifically formulated protection that will ensure that they still "own" a name, even if payment has lapsed due to unforeseen circumstances. This protection should follow the spirit of laws that are made to protect property owners from confiscations due to non-payment of property taxes.  It would be better to provide specifically for 25 and even 50 year registrations.)

                  f. The registrar would not insert or renew any SLD name in any registry for which the registrar is accredited in a manner contrary to a list or
                    specification of excluded SLD names that is in effect at the time of insertion or renewal.
DADNO comment:
(f. Oppressive. Once a Domain Name is registered and active on-line, the Owner should be reasonably secure in the knowledge that he can use the Domain well into the future. His rights to the name in this respect should be akin to acquired property rights. A "moving target" list of excluded SLD names would nullify reasonable Name security)

                    g. The registrar would require all SLD holders to enter an electronic or paper registration agreement with the registrar including at least the
                    following provisions:

                              i. The SLD holder shall be required to provide to the registrar accurate and reliable contact details and promptly to update them
                              during the term of the SLD registration, including: the full name, postal address, e-mail address, voice telephone number, and fax
                              number if available of the SLD holder; name of authorized person for contact purposes in the case of an SLD holder that is an
                              organization, association or corporation; and the data elements listed in IV.3.a.ii, iii, and vi-ix above.

                              The provision of inaccurate or unreliable information or the failure to promptly update it shall constitute a material breach of the
                              SLD holder-registrar contract and be a basis for cancellation of the SLD registration.
DADNO comment:
(i. Too harsh: minor errors or mistakes made in good faith, should not lead to cancellation. If the SLD has been in use, for, say, a period of 3 months, incorrect information should no longer be a ground for cancellation. )

An SLD holder (such as an ISP) may provide its own contact information in connection with an SLD the use of which it intends
                              to license to a third party who wishes to remain anonymous, provided that the technical, administrative, and zone contact
                              information provided is adequate to facilitate timely resolution of any problems that arise in connection with the domain.

                              ii. The registrar would provide notice to each SLD holder-customer stating:

                                        A. The purposes for which any data collected from the applicant about any identified or identifiable natural person
                                        ("Personal Data") are intended;

                                        B. The intended recipients or categories of recipients of the data (including the registry administrator and others
                                        who will receive the data from the registry);

                                        C. Which data are obligatory and which data, if any, are voluntary; and

                                        D. How the data subject can access and, if necessary, rectify the data held about them.

                              iii. The SLD holder shall consent to the data processing referred to in section IV.9.g.ii.

                              iv. The SLD holder shall warrant that it has provided notice equivalent to that described in Section ii above to any third-party
                              individuals whose Personal Data are supplied to the registrar by the SLD holder, and that the SLD holder has obtained consent
                              equivalent to that referred to in Section iii above of any such third-party individuals.

                              v. The registrar shall agree that it will not process the Personal Data collected from the SLD holder in a way incompatible with
                              the purposes and other limitations about which it has provided notice to the SLD holder in accordance with Section ii, above.

                              vi. The registrar shall agree that it will take reasonable precautions to protect Personal Data from loss, misuse, unauthorized
                              access or disclosure, alteration, or destruction.

                              vii. The SLD holder shall represent that, to the best of the SLD holder's knowledge and belief, neither the registration of the
                              SLD name nor the manner in which it is directly or indirectly used infringes the legal rights of a third party.

                            viii. For the adjudication of disputes concerning or arising from use of the SLD name, the SLD holder shall submit, without
                              prejudice to other potentially applicable jurisdictions, to the jurisdiction of the courts (a) of the SLD holder's domicile and (b)
                              where the registrar is located.
DADNO comment:
( Oppressive, especially in view of section 10. The courts of the SLD Holder's domicile should be the jurisdiction of choice. In practice, for SLD holders domiciled outside the US, litigation in the US will never be a realistic option--they will be forced to abandon the DN without just cause.)

                            ix. The SLD holder shall agree that its registration of the SLD name shall be subject to suspension, cancellation, or transfer as a
                              result of any ICANN procedure, or by a registrar or registry administrator procedure approved by ICANN, (a) to correct
                              mistakes by the registrar or registry administrator in registering the name or (b) for the resolution of disputes concerning the
                              SLD name.
      DADNO comment:
(Oppressive. Suspension, cancellation or transfer to another party will be entirely at the whim of the registrar.  Mistakes by the registrar should, after a reasonable period of time, either be recognized as a new DN right, or  the registrant who has been mistakenly issued a DN, and the registrant who should have been issued with the DN, should be compensated for damages upon cancellation or transfer.)

10. Domain Name Dispute Resolution. During the term of the accreditation agreement, the registrar would undertake to have in place a policy and
          procedure for resolution of disputes concerning SLD names. In the event that ICANN establishes a policy or procedure for resolution of its disputes that
          by its terms applies to the registrar, the registrar would adhere to the policy or procedure.

DADNO comment:
(This is easier said than done. The registrar is not a Court of Law and cannot be expected to rule in full consideration of all aspects of a DN dispute. This will lead to  "rough justice" that will invariably work in favour of  aggressive TM owners who are after existing Domain names, even in cases where there is no infringement or dilution.)

My overriding concern with these policy guidelines is that they will be taken up "as is" by TLD registries and registrars who will welcome such one-sided contracts.
ICANN should leave the formulation of such detailed policies to the DNSO , or at least wait untill it has a democratically elected Board in which DN registrants will have a voice.
 Joop Teernstra LL.M.Democratic Association of  Domain  Name  Ownershttp://www.democracy.org.nz


Jeffrey A. Williams
CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
Information Network Eng. Group. INEG. INC.
E-Mail jwkckid1@ix.netcom.com
Contact Number:  972-447-1894
Address: 5 East Kirkwood Blvd. Grapevine Texas 75208