[gnso-irtp-b-jun09] Re: Impact of "Voluntarily" language on 60 day lock following registrant change

[George Kirikos <icann@xxxxxxxx>]

Hi again,

As I had a question from someone off list, the following additional
details might help ICANN (and the working group) in their analysis.

In my post I reference the definition of "voluntary"

"acting or done of one's own free will ***without valuable
consideration or legal obligation***"

Note the latter part, which is really referencing an agreement or
*contract.* (i.e. what GoDaddy is relying upon to *bind* someone, i.e.
not making it voluntary)

And here's the "smoking gun" that goes directly to that issue which
was in a transcript from 2009 (where GoDaddy was trying to explain the
policy):

http://syd.icann.org/files/meetings/sydney2009/transcript-irtp-b-brainstorming-session-21jun09-en.pdf

"And so, one thing is we want to make sure that we have a registration
agreement in place with the new registrant. So, we have a process that
you go through if you're going to do that, that both the losing
registrant and the gaining registrant is made aware of the fact that
this is a service that we're going to provide to you. We provide it
free under the condition that once completed, the domain name, you
agree that you won't transfer the domain name for 60 days.
And then we explain if that's not going to work for you, the option is
transfer the domain name first and then complete the change of
ownership at the new registrar. And so, if they complete the process,
they've been fully informed and then the domain name is held locked
for 60 days."
" (page 18, Tim Ruiz)

Note words like:

"a service we're going to provide to you" = legal consideration
"under the condition"
"you agree"

And also what the alternative is "if that's not going to work for you"
-- transfer it elsewhere. So, it's a classic "take it or leave it"
contract of adhesion, not negotiable by two equal parties. The promise
not to transfer is an integral part of the binding agreement, and is
not some "voluntary" after thought.

In other words, one simply can't do the registrant change at GoDaddy
unless you also supposedly "opt-in" "voluntarily" to their 60-day
lock. That's clearly not "voluntary" under the definition of the word
above. There's both valuable consideration and a *legal obligation*
attached to the agreement to the 60-day lock, which means it's not
voluntary.

George Kirikos
416-588-0269
http://www.leap.com/

On Wed, Jul 7, 2010 at 10:22 AM, George Kirikos <icann@xxxxxxxx> wrote:
> Hello,
>
> In November 2009, David Giza of ICANN provided an interpretation of
> the GoDaddy 60-day lock after a registrant change which has been
> suggested to be "opt-in". This was posted to the IRTP-B working group
> at the bottom at:
>
> http://forum.icann.org/lists/gnso-irtp-b-jun09/msg00345.html
>
> recently, and led to some discussions. I believe this interpretation
> needs to be looked at again, as it did not appear to fully consider
> the meaning of "voluntarily" in the language of the transfers policy.
> See below for points pulled from that prior thread (with a few
> editorial changes and cleanup):
>
> I believe another route to attack ICANN's current interpretation is
> via the word "voluntarily" in the transfer policy, i.e. it says:
>
> "Express written objection to the transfer from the Transfer Contact.
> (e.g. - email, fax, paper document or other processes by which the
> Transfer Contact has expressly and ****voluntarily***** objected
> through opt-in means)"
>
> (emphasis added for "voluntarily")
>
> There are various definitions of "voluntarily" or "voluntary", but I
> think the most apt one is #7 at:
>
> http://www.merriam-webster.com/dictionary/voluntarily
> http://www.merriam-webster.com/dictionary/voluntary
>
> "acting or done of one's own free will ***without valuable
> consideration or legal obligation***"
>
> *** = emphasis added
>
> I believe that conflicts with GoDaddy and ICANN's interpretation,
> because one simply *cannot* opt-in via a *binding legal contract* to
> something that is *voluntary*. I ask that ICANN's compliance take
> another look at this. If something is truly voluntary, the "express
> written objection" can be revoked at *any time* and is thus not
> permanent or binding in any way legally.
>
> I think this point warrants further examination by ICANN and this
> workgroup, to clarify exactly what can or cannot be "opted-in" to,
> i.e. what is a minimum standard, what are a registrant's inalienable
> rights?
>
> One can see further discussion on these latter points in the posts at:
>
> http://forum.icann.org/lists/gnso-irtp-b-jun09/
>
> in the "60 day lock following registrant change" thread, in particular:
>
> http://forum.icann.org/lists/gnso-irtp-b-jun09/msg00346.html
> http://forum.icann.org/lists/gnso-irtp-b-jun09/msg00360.html
>
> Can, for example, a registrant "opt-in" to a binding and irreversible
> 360 day lock or a 50-year lock that *cannot be undone* at a later
> date? If so, how would that be "voluntary"?
>
> Sincerely,
>
> George Kirikos
> 416-588-0269
> http://www.leap.com/
>