Re: [gnso-rap-dt] Registration vs. Use / Scope Issues

[George Kirikos <icann+rap@xxxxxxxx>]

Hello,

On Thu, May 28, 2009 at 5:17 PM, Mike Rodenbaugh wrote:
> There are plenty of WIPO and NAF precedents for the notion that bad faith at
> time of renewal = bad faith registration.  That is the better view, given
> the registrant's warranties required by Section 2, and pure logic.

While there might be a few kooky decisions that you can find, it's not
correct that there are "plenty" of precedents to support that view.
Let me reiterate, according to the WIPO Overview, Question 3.7:

http://www.wipo.int/amc/en/domains/search/overview/index.html#37

"3.7 Does the renewal of the registration of a domain name amount to a
registration for the purposes of determining whether the domain name
was registered in bad faith?

Consensus view: While the transfer of a domain name to a third party
does amount to a new registration, A MERE RENEWAL of a domain name
DOES NOT AMOUNT TO REGISTRATION for the purposes of determining bad
faith. Registration in bad faith MUST OCCUR AT THE TIME THE CURRENT
REGISTRANT TOOK POSSESSION of the domain name."

Emphasis added. :) While it may be your opinion that it's a "better
view", it's certainly not the view of those who are domain name
registrants, especially those having to defend against over-reaching
complainants who feel some "entitlement" to something that does not
belong to them. For example, utube.com was created well before
YouTube.com, and is certainly capitalizing on the latter's popularity.
However, the renewal of utube.com is certainly NOT a "registration."

One can see more about Bad Faith renewals in articles like:

http://www.circleid.com/posts/udrp_does_not_apply_to_bad_faith_domain_name_renewals_part_i
http://www.circleid.com/posts/udrp_does_not_apply_to_bad_faith_domain_name_renewals_part_ii

or do a search in Google for "bad faith renewal".

http://www.google.com/search?q=%22bad+faith+renewal%22&hl=en&safe=off&num=30&start=30&sa=N

As I noted in comment 9.(s) of the IRT draft, the IP constituency are
openly trying to weaken the protections registrants have by playing
their own semantic games:

http://forum.icann.org/lists/irt-draft-report/msg00015.html

changing "AND" from "OR", in order to expand the reach of
complainants. That should be denied.

> We are wasting tons of time on this semantic adventure, trying to define
> when registration begins and ends, when it is very obvious that it simply
> continues until it is terminated.  Abuse during that time is an abusive
> registration.

It's not obvious to me at all, and the time is definitely not being
wasted by those of us who are defending against those attempting to
overreach and redefine long settled issues. "During that time" goes
towards "use", not "registration." Registration is a specific point in
time. Use is a duration of time AFTER the creation date (or between
other "points in time", as listed before):

a) domain name created (creation date) --- IS a "registration"
b) domain name is transferred to a new registrant (change of
ownership) -- IS a "registration"
c) domain name renewal (no change in ownership) -- NOT a "registration"
d) creation of glue records / nameservers registered in WHOIS database
-- IS a "registration"
e) domain recovered after deletion (i.e. RGP) -- IS a "registration"
[actually, this might be more like a renewal, so put an asterisk next
to this one, as it might not be a registration]
f) use of domain name after the creation date -- NOT a "registration"

There are multiple meanings of the word "registration" e.g.

http://www.answers.com/registration
.
1. The act of registering: voter registration.
2. The number of persons registered; enrollment.
3. An entry in a register.
4. A document certifying an act of registering.
5.  Music.
a) A combination of organ stops selected to be used in playing a piece.
b) The technique of selecting and adjusting organ stops.

I'm basically using definition #1 above, which is how it's always been
defined and used within ICANN. Mike Rodenbaugh is trying to expand
things to use definition #3 or #4, which is unacceptable. Adopting
definition #3 or #4 above would be the same as defining "registration"
as "domain name."

Going back to the definition of scope:

"the Working Group should define domain name registration abuse, as
distinct from abuse arising solely from use of a domain name while it
is registered"

That sentence simply does not make any sense if one uses definition #3
or #4, i.e. "registration" = "domain name". It makes perfect sense if
one uses definition #1, i.e. "the act of registering." Attempting to
use definition #3 or #4 is essentially trying to REMOVE the limiting
word registration itself.

The GSNO council put the word in "registration" on purpose, to limit
the scope. Attempting to use definition #3 or #4 is an attempt to
expand the scope which GNSO Council intentionally limited. We
obviously support only the limited scope which the Council intended.

This is the "Registration Abuse Policies" working group, not the
"Domain Abuse Policies" working group, the latter of which would by
definition encompass all use arising from the domain name's use while
it is registered.

Sincerely,

George Kirikos
http://www.leap.com/