RE: [bc-gnso] Last Call: BC Position on New TLD Registry Agreement Amendments DAG v3
- To: ron Andruff <randruff@xxxxxxxxxxxxxxx>, bc - GNSO list <bc-gnso@xxxxxxxxx>
- Subject: RE: [bc-gnso] Last Call: BC Position on New TLD Registry Agreement Amendments DAG v3
- From: Marilyn Cade <marilynscade@xxxxxxxxxxx>
- Date: Wed, 31 Mar 2010 10:49:05 -0400
I wonder if the term is challenging to the newcomers, though, Ron. Perhaps a
footnote that while not naming a registry specifically, could note that
captures your first sentence. I fully support the issue/concern, but wanted to
note that a 'brands' registry for instance, would have different needs. Your
other excellent example is a bigger concern and one well worth noting. How
about a [for example, a registry that after delegation, engages in undertakings
that are demed to damage the integrity of the Internet and ICANN, and harms
registrants and specific communities, or engages in actions which are deemed to
create technical risks]. That last phrase would have captured 'sitefinder', I
think, and wildcarding in the g's. for instance.
Marilyn S. Cade
202 360 1196 or 202 251 6787
mscade@xxxxxxx or marilynscade@xxxxxxxxxxx
To: marilynscade@xxxxxxxxxxx; bc-gnso@xxxxxxxxx
Subject: RE: [bc-gnso] Last Call: BC Position on New TLD Registry Agreement
Amendments DAG v3
Date: Wed, 31 Mar 2010 10:44:11 -0400
Last Call: BC Position on New TLD Registry Agreement
Amendments DAG v3
Regarding your comment on ‘rogue’
registries, this refers specifically to undertakings that are deemed to damage
the integrity of the Internet and ICANN, which ultimately harms both individual
users and specific communities. For example the current managers of
.TRAVEL have been using that registry as their ‘own pool of domain names’,
which irrespective of other’s IP rights are purchased and held in a
separate company (held 100% by the managers of .TRAVEL) which has been set up
solely to try to monetize their .TRAVEL domain names. In order to do this,
they first established a self-serving bulk purchase policy at massive discounts
to the industry retail price. These are the types of rogue issues that we
are recommending ICANN address in the new gTLD contracts – specifically by
providing compliance with effective tools to allow them to address the types of
issues noted above as soon as they arise.
Hope this helps to clarify the matter for
you and all of the members.
Ronald N. Andruff
RNA Partners, Inc.
220 Fifth Avenue
New York, New York 10001
+ 1 212 481 2820 ext. 11
owner-bc-gnso@xxxxxxxxx [mailto:owner-bc-gnso@xxxxxxxxx] On Behalf Of Marilyn
Sent: Wednesday, March 31, 2010
To: bc - GNSO list
Subject: RE: [bc-gnso] Last Call:
BC Position on New TLD Registry Agreement Amendments DAG v3
Thanks, Steve, Jon, and Ron, for your work on this position. I largely support
the perspective in the document.
However, I would propose a change: I think that your
use of domain name tasting as an example is actually not fully factual. I'd
propose that you simply strike that example. The PDP 06 is a better example,
but I don't think you should substitute it. Instead, just strike the reference
to the specific example. [first paragraph under the source: citation].
It would take too much time and detail to factually
explain this topic. I'd propose just to remove it as an example.
Background to why I am proposing that change: The
BC [and IPC] led a significant effort to push forward awareness of kiting,
tasting, and parking, against considerable opposition from some other
constituencies within ICANN. The data gathering efforts, which included
informational exchanges with the ICANN staff and Board, and by some members of
the BC with legal and operational staff was very challenging. The PDP
process could have floundered due to lack of support by some of the
constituencies. Some parties in the business community undertook
extensive work, outside of ICANN, to deal with aggregious
tasting/parking/kiting when it involved trademarked names. These actions
helped to educate and inform ICANN staff and Board. Ultimately, it was
the combination of external and awareness efforts that built willingness to
this contentious issue within the ICANN PDP process.
Overall comment: In reading this, i would note that
the BC needs to be very sensitive in our positions, focusing on our role and
responsibility as the BC, to be business user centric. Business users are
affected by these policies differently than the supplier/contracted parties
Finally, there is a reference to 'rogue issues', or 'rogue
registry'. A registry with very unique characteristics, such as a brands
focused registry, might find certain requirements impossible to agree to
-- e.g. the transfer of the registry operations in the event of a decision to
close the registry. This would not make them a 'rogue' registry.
speaking in individual capacity as a BC member
Subject: RE: [bc-gnso] Last Call: BC Position on New TLD Registry Agreement
Amendments DAG v3
Date: Tue, 30 Mar 2010 17:04:29 -0700
Thanks Steve, Jon
and Ron. I support this position.
owner-bc-gnso@xxxxxxxxx [mailto:owner-bc-gnso@xxxxxxxxx] On Behalf Of Steve
Sent: Tuesday, March 30, 2010 3:31
Subject: [bc-gnso] Last Call: BC
Position on New TLD Registry Agreement Amendments DAG v3
Last call, folks.
Below is the draft BC position on new TLD Registry Agreement
Ron Andruff and Jon Nevett provided the draft. I’ve signaled my agreement,
as did Berry Cobb.
Absent objections by COB tomorrow, we will file as consensus BC comments on
Business & Commercial Users’ Constituency (BC)
Position/Comments on Process for Amendments to New gTLD Registry Agreements
The Commercial and Business Users
Constituency (BC) welcomes the opportunity to comment on the New gTLD Program
Explanatory Memorandum on the Process for Amendments to New gTLD Registry
Agreements, which was published for public comment on February 15, 2010 (see
ICANN seeks comment as to a fair process to amend New TLD registry agreements.
In DAG v.3, ICANN proposed that it could unilaterally amend registry
agreements even after a majority of the registry operators rejected such
amendments. The Registries Stakeholder Group (RySG) recently has proposed
a system of good faith negotiations between ICANN and the registry operators,
but that each registry would have a veto on proposed changes to that registry
As a matter of policy, the BC believes that businesses should not be subject to
agreements where the other party has the unilateral right to amend such an
agreement. ICANN’s proposal in which the ICANN Board could
unilaterally impose a change to registry agreements notwithstanding the
objections of a majority of registry operators, the BC, or any other ICANN
organization is an anathema to ICANN’s bottom-up policy making roots.
Similarly, the RySG’s proposal, in which each individual registry has the
ability to veto a proposed change, also is inconsistent with the efficient
functioning and scalability of the New gTLD program. This issue requires
a “balanced” approach that satisfies both parties.
The BC analyzes the issue based on whether proposed changes are within the
so-called “picket fence” – and subject to Consensus Policy
– or not. All contractual changes should be made in a transparent
manner with input from the community.
For issues within the picket fence, there is an existing Policy Development
Process that carries the power to change all registry and registrar agreements.
As described in current and proposed registry contracts, the picket fence
includes most conceivable ways that community and BC members would need to
control registry practices:
1.2.1. issues for which uniform or coordinated resolution
is reasonably necessary to facilitate interoperability, security and/or
stability of the Internet or DNS;
1.2.2. functional and performance specifications for the provision of registry
1.2.3. Security and stability of the registry database for the TLD;
1.2.4. registry policies reasonably necessary to implement Consensus Policies
relating to registry operations or registrars; or
1.2.5. resolution of disputes regarding the registration of domain names (as
opposed to the use of such domain names).
1.3.1. principles for allocation of registered names in the TLD (e.g.,
first-come/first-served, timely renewal, holding period after expiration);
1.3.2. prohibitions on warehousing of or speculation in domain names by
registries or registrars;
1.3.3. reservation of registered names in the TLD that may not be registered
initially or that may not be renewed due to reasons reasonably related to (i)
avoidance of confusion among or misleading of users, (ii) intellectual
property, or (iii) the technical management of the DNS or the Internet (e.g.,
establishment of reservations of names from registration); and
1.3.4. maintenance of and access to accurate and up-to-date information
concerning domain name registrations; and procedures to avoid disruptions of
domain name registrations due to suspension or termination of operations by a
registry operator or a registrar, including procedures for allocation of
responsibility for serving registered domain names in a TLD affected by such a
suspension or termination.
By way of example, a picket fence PDP was how the BC and other community
members put a stop to domain tasting that was occurring by abuse of the
add-grace period. While many felt that a 2-year PDP and implementation
process took too long, this experience showed that the system works, generating
a policy outcome that became part of all registrar and registry agreements.
Therefore, ICANN shouldn’t have the ability to unilaterally change
such agreements without community consent, and the BC does not see any need for
a separate process for amendment on top of the current PDP process. The
ICANN community is tasked with making policy; not the ICANN Board or staff.
We have a process to make changes now. If that process needs
improvement, let’s improve it. Giving ICANN the ability to unilaterally
amend the Registry contract is not the answer.
Certain other issues outside the picket fence also should not be subject to
unilateral changes, such as pricing, ICANN fees, and other similar topics where
neither party can unilaterally amend an agreement without consent of the other
party to the contract.
There are some issues outside the picket fence, however, where ICANN and/or the
community should be able to amend registry agreements without the specific
consent of every single registry operator, as long as there is a consensus of
the community. These issues should include security and stability issues,
enforcement tools, registrant protections, and promoting a stable marketplace,
and should be enforceable against all registry operators. For example,
compliance staff must have the tools to enforce the registry agreements against
potential bad actor registries. One rogue registry should not be able to
veto changes that the rest of the community supports. Similar changes to the
Registrar Accreditation Agreement were recently adopted without each registrar
being able to veto the changes.
Even with such rogue issues, neither the ICANN staff nor the Board should be
able to amend registry agreements without community involvement and input from
the registry operators. All changes – regardless of the issue --
must be transparent and exhibit the appropriate level of accountability to the
ICANN needs to strike a balance in the manner in which registry agreements are
amended. In the BC’s view, neither the current ICANN proposal nor
the RySG proposal succeeds in doing so yet.