RE: [gnso-pednr-dt] Your feedback requested - outstanding items from last week's call

["Mike Rodenbaugh" <icann@xxxxxxxxxxxxxx>]

I'll back up Michele's interpretation of #1 re SRSU and RGP, and his
interpretation of contract law re changing TOS after initial acceptance.
Under US law it generally is the same as he sees it in the EU and Ireland.
Even though almost every website says they can change the TOS whenever they
like and the user will be bound, many courts have held such amended terms
unenforceable if not specifically accepted by the user.  I believe a few
courts even have held the entire agreement unenforceable as there never was
agreement in the first place, since terms could be unilaterally changed.
Definitely risky to purport to unilaterally amend a contract, and assume the
amended term will be enforceable.

Mike Rodenbaugh
RODENBAUGH LAW
tel/fax:  +1 (415) 738-8087
http://rodenbaugh.com 


-----Original Message-----
From: owner-gnso-pednr-dt@xxxxxxxxx [mailto:owner-gnso-pednr-dt@xxxxxxxxx]
On Behalf Of Michele Neylon :: Blacknight
Sent: Tuesday, February 01, 2011 1:19 AM
To: Marika Konings
Cc: PEDNR
Subject: Re: [gnso-pednr-dt] Your feedback requested - outstanding items
from last week's call



On 1 Feb 2011, at 09:03, Marika Konings wrote:

> Dear All,
> 
> In order to facilitate discussion and input prior to our meeting, also for
those not being able to join today's call, please find below the main
outstanding items based on last week's meeting:


Thanks for this Marika. It's also helpful to try and discuss more of this on
the various mailing lists rather than waiting for a meeting .. 


>       . Recommendation #1 - All unsponsored gTLD Registries shall offer
the Redemption Grace Period (RGP). For currently existing gTLDs that do not
currently offer the RGP, a transition period shall be allowed. All new gTLDs
must offer the RGP.
>> For discussion:  Should there be an exemption for TLDs that do not sell
domains at all (what has been referred to in the VI WG as SRSU)?

I would say yes or no. It doesn't actually matter if they do or they don't,
as they're all being registered and used by the same entity .. so it's
probably just easier to give them the exemption .. 

Or am I missing something?


>       . Recommendation #2 - Define Registered Name Holder at Expiration"
(RNHaE) as the Registered Name Holder of record just prior to the Expiration
of the Registered Name.
>> Comments: The language needs to be precise regarding which registrant is
being referred to. Presumably the one that is in WHOIS prior to Expiration.
(Any suggestions for further improvement?)
>       . Recommendation #3 - Following expiration, during Autorenew Grace
Period, if a Registrar Deletes a Registered Name and that Registered Name
enters the RGP, the Registrar must allow the Registered Name Holder at
Expiration to redeem the Registered Name. This is regardless of any changes
made to Whois data or other records between expiration of the domain and
entering RGP.  This is excepted where the Registrant has explicitly agreed
to a reassignment of the domain, in a separate unilateral action at the time
of reassignment, name to another Registered Name Holder.
>> Comments: Michael Young to provide further information. The WG also
discussed that the recommendation should specify what the authoritative
source for the information on the Registered Name Holder at expiration
should be e.g. as shown in WHOIS. (WG members encouraged to provide
alternative language for consideration)  


If Michael could explain his reasoning it would be helpful. I *think* I know
what he's trying to say, but the current wording opens up several nasty cans
of worms

>       . Recommendation #6 - The price charged for post-expiration renewal
during the [guaranteed renewal period] must be explicitly stated in the
current registration agreement or on the Registrar's web site (if any). This
price must also be provided to the Registered Name Holder at expiration at
the time of registration and when pre-and post-expiration renewal notices
are provided.
>> There is no requirement that the price remains constant during the entire
post-expiration period, but if it varies over time, that variation must be
included in the above disclosures. The price may notvary based on any
perceived or measured value beyond the "face" value of the Registered Name.
>> 
>> Comment: Some suggested that the recommendation should capture better
that the focus is on disclosure and not limiting pricing. (WG members
encouraged to provide alternative language for consideration)

I'm in favour of disclosure of pricing, but I wonder does it actually help
anyone? In the Irish market, for example, there is only one ICANN accredited
registrar (us). We are the only company selling domain names and other
services that is bound by the RAA and consensus policies that ICANN (or
anyone else) has any easy visibility of. While the other companies that
offer domain names in the Irish market are obviously bound by the RAA via
the registrar they choose to use there is no easy way for anyone to monitor
their compliance with this sort of thing.
So I would wonder if this kind of thing means that effectively a compliant
registrar is being made to disclose more information than a reseller .. or a
reseller of a reseller of a reseller 

>       . Recommendation #10 - The registration agreement and registrar web
site (if one is used) must clearlyindicate what methods will be used to
deliver pre- and post-expiration notifications.
>> Comments: Some expressed concern that this recommendation could be
interpreted in an overly narrow sense i.e. bind the registrar to the methods
specified at the time of registration, but it was pointed out that the
registrar could modify its methods at any time as long as the registrant
would be notified of such changes. Wording to reflect this requested.

I have issues with this and I'm one of the people this refers to :)

We're talking about binding terms, contracts and agreements.

Under Irish and EU law it is problematic to change the terms of a contract
while the contract is active (sorry - not a lawyer, so that's worded badly).
Basically if I enter into a contract with someone on January 1st I cannot
simply change the terms of the contract on January 3rd (or later). If a
supplier / provider / $whatever changed the terms of a contract without
getting the user to agree to the changes / accept them it can be
problematic. I don't think it's illegal, but even if it weren't a potential
legal issue it's definitely a customer service issue.
I would, therefore, be more inclined to use more open language, as it's not
as simple as "changing" stuff later as some people seem to contend

Regards

Michele

> 
> Please feel free to share your comments, suggestions and/or proposed edits
with the mailing list.
> 
> With best regards,
> 
> Marika

Mr Michele Neylon
Blacknight Solutions
Hosting & Colocation, Brand Protection
ICANN Accredited Registrar
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