RE: [gnso-irtp-b-jun09] Recommended Modifications to the Latest ERTP Recommendation
James et al, I like the analogy of removing a racket being the only way to stop the ping pong effect that will certainly develop with the ERTP Dispute. I agree that we should forego the ERTP Dispute option. I, too, recognize that this approach may raise criticism as being too one sided but at the heart of the issue is a dispute over rights to a domain name. The IRTP and associated TDRP were not developed to address this issue. Just as the policy name suggests, it is the Inter Registrar Transfer Policy. I agree with James that disputes over the registration rights to a domain name should continue to be addressed by the UDRP and/or the courts. Barbara Steele Compliance Officer / Director of Policy Naming Services -----Original Message----- From: James M. Bladel [mailto:jbladel@xxxxxxxxxxx] Sent: Friday, May 21, 2010 2:49 PM To: Mike O'Connor Cc: Steele, Barbara; 'IRTP B Mailing List'; Michael Collins Subject: RE: [gnso-irtp-b-jun09] Recommended Modifications to the Latest ERTP Recommendation Team: I've been reluctant to comment on some of the ETRP changes thus far, due to my desire to get more feedback via Public Comment. But I do have concerns about the direction we're headed with this proposal, and I think it would be prudent for us to be thinking of a fall-back position, in the event that we receive significant push-back from the community. In short, I think we should consider going forward with an alternate version that doesn't include a means to dispute the ETRP. I say this with full acknowledgment to the problems that Michael, Kevin, Barbara and others have identified, and the efforts of the Working Group to address them. But the "ETRP Dispute" contains some fundamental flaws that could derail our entire proposal. Essentially, the ETRP Dispute broadens the proposed policy from its narrow goal of reversing transfers, and puts Registries and Registrars in the position of adjudicating ownership / control issues. In my opinion, this is an issue that cannot be resolved by ICANN policy, nor should it. Genuine disputes must be resolved by outside arbitration (e.g. UDRP) or an appropriate court. It may seem unbalanced, but in order to prevent a ping-pong situation from developing, someone has to give up their racket. Throughout this process, we've worked hard to build support amongst those stakeholders who are most likely to oppose ETRP in any form. But I'm afraid that some of these changes will erode that support and the momentum that we've created on this issue. So, I think a fall-back version that doesn't include the ETRP Dispute section would be a good contingency plan. Thanks-- J. -------- Original Message -------- Subject: Re: [gnso-irtp-b-jun09] Recommended Modifications to the Latest ERTP Recommendation From: "Mike O'Connor" <mike@xxxxxxxxxx> Date: Fri, May 21, 2010 10:20 am To: Michael Collins <mc@xxxxxxxxxxxxxxxxx> Cc: "'Steele, Barbara'" <BSteele@xxxxxxxxxxxx>, "'IRTP B Mailing List'" <Gnso-irtp-b-jun09@xxxxxxxxx> Michael and Barbara, many thanks to both of you for this discussion -- i'm comfortable with where the two are you are headed, so you've got my vote to go ahead and drive this last round of changes in Michael. mikey On May 19, 2010, at 4:19 PM, Michael Collins wrote: Hi Barbara and all, Thank you for your work on this. It is good to remove erroneous assumptions about TDRP from ETRP. I am disappointed that the TDRP cannot be used to resolve a potential dispute between registrars and their customers that results in an ETRP. I am not sure that it is within our mandate to suggest any changes to TDRP, though it does not seem to work well in practice according to some members of our group. It was my desire for the domain to stay in the control of PTRa during a dispute. However, if we are going to accept that a claim of hijacking (ETRP) is cause to reverse a transfer, we should accept that a claim that an ETRP was filed in error (Disputed ETRP) as cause to restore a transfer, not just when PTRa agrees. PTRa should not be put in the place of deciding a dispute between PTRa and the gaining Registrar. Both claims (ETRP and Disputed ETRP) must present the same level of explanation, identification and indemnification and lacking any dispute resolution mechanism should be treated with equal actions. It is my opinion that most hijackers will not want to reveal their identity and indemnify their registrar, so most ETRPs caused by hijacking will not result in a Disputed ETRP. PTRa could still file a TDRP to resolve an ITRP dispute, but it would not get to decide the dispute in a TDRP. Would the group like to discuss this before I attempt to edit the document to make these changes? Best regards, Michael Collins From: owner-gnso-irtp-b-jun09@xxxxxxxxx [mailto:owner-gnso-irtp-b-jun09@xxxxxxxxx] On Behalf Of Steele, Barbara Sent: Wednesday, May 19, 2010 2:47 PM To: IRTP B Mailing List Subject: [gnso-irtp-b-jun09] Recommended Modifications to the Latest ERTP Recommendation All, I have incorporated my recommended modifications into the latest version of the document. Because this proposed policy is intended to augment existing policies, I have deleted the language relating to option to dispute a disputed ERTPusing the TDRP. Also, the registries will not want to be in the middle of the communications that ensue between the PTRa and the new Registrar should the new Registrar elect to dispute the ERTP. The registries would add little to no value in that activity. To the extent that the PTRa, upon receipt of a Disputed ERTP case from the new Registrar, agrees that the domain name should not have been transferred via the ETRP, then they would forward the Disputed TDRP to the appropriate Registry Operator and the Registry Operator would restore the domain name to the new Registrar within 5 days (I changed this from 30 days as the IRTP calls for the following in Part A, Section 6: “The Registry Operator must undo the transfer within five (5) calendar days of receipt of the notice except in the case of a Registry dispute decision, in which case the Registry Operator must undo the transfer within fourteen calendar days unless a court action is filed. The notice required shall be one of the following: i. Agreement of the Registrar of Record and the Gaining Registrar sent by email, letter or fax that the transfer was made by mistake or was otherwise not in accordance with the procedures set forth in this policy; ii. The final determination of a dispute resolution body having jurisdiction over the transfer; or iii. Order of a court having jurisdiction over the transfer.” Please let me know if any of my recommended edits do not make sense. Many thanks. <<...>> Barbara Steele Compliance Officer / Director of Policy VerSign, Inc. - - - - - - - - - phone 651-647-6109 fax 866-280-2356 web www.haven2.com handle OConnorStP (ID for public places like Twitter, Facebook, Google, etc.) Attachment:
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