[gnso-rap-dt] RE: RAP WG: Sub-Team on Uniformity in Contracts

["Mike Rodenbaugh" <icann@xxxxxxxxxxxxxx>]

I have nothing to add to this at this time.  So I copy the WG in hopes we
can discuss today and get any thoughts from WG members.

Thanks,
Mike

Mike Rodenbaugh
Rodenbaugh Law
548 Market Street
San Francisco, CA  94104
+1.415.738.8087
www.rodenbaugh.com 

-----Original Message-----
From: Mike O'Connor [mailto:mike@xxxxxxxxxx] 
Sent: Monday, July 20, 2009 6:05 AM
To: berrycobb@xxxxxxxxxxxxxxxxxxx
Cc: Marika Konings; Greg Aaron; Mike Rodenbaugh; Margie Milam;
"Glen_de_Saint_Géry"
Subject: Re: RAP WG: Sub-Team on Uniformity in Contracts

great summary Berry, thanks!

Greg, we could either update the group on the call later this morning, or we
could wait one cycle.  up to you.

mikey


On Jul 20, 2009, at 1:50 AM, berrycobb@xxxxxxxxxxxxxxxxxxx wrote:


        

        Team,
         
        I apologize for having not sent this sooner.  I just completed a
move to a new city in California with internet connectivity only being
restored yesterday.  Below you will find a recap of the sub-team on
contracts uniformity with Mike O?Conner and me.  To summarize, we just had
an informal conversation about this topic, and we would like to have another
session with all sub-team members before we finalize our direction.  Please
let me know if you have questions, and Mike please add to this string with
anything that I may have left out.
         
        For tomorrow?s call, I will be mobile and as such no access to the
Adobe connect session.  See you then.
         
         
        Monday 13 July 2009 @ 11:00 PDT
        The session started by keying off Marika?s email that contained
language from the RAP charter and findings from the Issues Report.  On the
table is whether additional research should be devoted to the topic of
contract uniformity and I think we all understand the answer to be ?YES.?
The question really becomes scope and sizing of effort.
         
        What we have to date:

        ·         Research conducted by ICANN staff of abuse language in
Registry gTLD contracts and Registrar/Registrant contracts.  As we all
presumed and by the findings listed in the Issues report, the result is that
there is ?NO? uniformity in contracts, much less, uniformity in abuse
provisions or language.  The question becomes, is how much more effort and
research should be expended to further validate the answer?

        
        

        ·         In parallel, Berry has collected 93 Registrar policy,
terms of use, legal, contracts, and etc?across 46 counties.  Where counties
that contained more than 10 registrars, the top 10 by number of domains
registered (per domainhosting.info) were collected.   An additional filter
was also used where English was not available.   If no, the next registrar
down the list was used.  The intent by the collection of this data is to
conduct a quantitative measure of abuse language types listed within the
contracts and also perform an abuse text comparison by registrar per country
seeking similarities and patterns.  Given the lack of uniformity in current
state, the question is what value in completing the more detailed analysis
be?  Should the effort be expended?  I have not sized this effort yet.  The
process would basically be a review of each registrar?s policies and tagging
within a spread sheet for instances of mention of abuse types, as identified
in RAP?s working document.  Perhaps as the research progresses, other
reporting attributes may be uncovered.  The secondary objective is to
determine best of breed and establish a baseline in which to rank other
registrars.

         
        Probable actions and discussion:

        ·         There was discussion about Registrar contracts with ICANN
and Registries.  Should these be included within scope and/or does it
influence actions taken by the registry/registrars relating to abuse?

        
        

        ·         To determine how abuse is dealt with (mitigation or
prevention) the finalization of contract research and establishment of
baseline to create a questionnaire/survey of sorts for registry/registrar
activities based on abuse categories defined by RAP.  With this survey we
thought about seeking assistance from the Registry and Registrar
constituencies to complete the research.  Clearly much development is
required here.

        
        

        ·         Determine overall sub-team scope and objectives.  What
outcomes do we expect from this effort and what are timeline expectations.
What would be sub-team meeting frequency and shared duties?  Perhaps the
sub-team can meet later this week, or early next to finalize and confirm the
logistics.

         
        That pretty much concludes the teleconference.  Lets discuss next
steps and see everyone on the next session.  
         
        Thank you.
         
        Berry Cobb
        Infinity Portals LLC
        866.921.8891
         
         




                -------- Original Message --------
                Subject: RAP WG: Sub-Team on Uniformity in Contracts
                From: Marika Konings <marika.konings@xxxxxxxxx>
                Date: Wed, July 08, 2009 3:40 am
                To: Mike O'Connor <mike@xxxxxxxxxx>, Mike Rodenbaugh
                <mike@xxxxxxxxxxxxxx>, "berrycobb@xxxxxxxxxxxxxxxxxxx"
                <berrycobb@xxxxxxxxxxxxxxxxxxx>
                Cc: Greg Aaron <gaaron@xxxxxxxxxxxx>, Margie Milam
                <Margie.Milam@xxxxxxxxx>, Glen_de_Saint_Géry
<Glen@xxxxxxxxx>
                
                Dear All,
                
                In order to get the discussion started for this sub-team on
?uniformity in contracts? I thought it might be helpful to provide you with
some of the relevant sections of the issues report and charter related to
this issue (see below). 
                
                Please note that I will be on holiday next week (13-17
July). If, in addition to discussions on the mailing list, you would like to
set up a separate conference call or need any other assistance, please
contact Glen during this period.
                
                Thanks,
                
                Marika
                
                ===============================
                
                From the RAP WG Charter
                
                Additional research and identifying concrete policy issues ?
The issues report outlines a number of areas where additional research would
be needed in order to understand what problems may exist in relation to
registration abuse and their scope, and to fully appreciate the current
practices of contracted parties, including research to:
                

                *       ?Understand if registration abuses are occurring
that might be curtailed or better addressed if consistent registration abuse
policies were established? 
                *       ?Determine if and how {registration} abuse is dealt
with in those registries {and registrars} that do not have any specific
{policies} in place? 
                *       ?Identify how these registration abuse provisions
are {...} implemented in practice or deemed effective in addressing
registration abuse?.
                        

                
                In addition, additional research should be conducted to
include the practices of relevant entities other than the contracted
parties, such as abusers, registrants, law enforcement, service providers,
and so on.
                
                The Working Group should determine how this research can be
conducted in a timely and efficient manner -- by the Working Group itself
via a Request for Information (RFI), by obtaining expert advice, and/or by
exploring other options.
                
                Based on the additional research and information, the
Working Group should identify and recommend specific policy issues and
processes for further consideration by the GNSO Council.
                
                From the Registration Abuse Policies Issues Report
(http://gnso.icann.org/issues/registration-abuse/gnso-issues-report-registra
tion-abuse-policies-29oct08.pdf)
                
                From the Executive Summary:
                
                Provisions in Registry Agreements relating to abuse
                
                §  This chapter identifies four different categories namely:
1) gTLDs with abuse provisions in the Registry Agreement, 2) gTLDs with
abuse provisions in other documents, 3) gTLDs with take down provisions that
are open to interpretation and could potentially be used to address abusive
behaviour, and, 4) gTLDs with no provisions and/or references related to
abuse.
                
                § Research found that eleven out of sixteen gTLDs have
provisions in place that  address (seven of eleven) or potentially could
address (four of eleven) abuse. 
                
                §  This chapter provides an overview of those provisions
deemed relevant in this context.
                
                Provisions in Registration Agreements relating to Abuse
                
                §  ICANN staff reviewed the gTLD registration agreements of
a geographically diverse group of ICANN-accredited registrars. In addition
to the registration agreements, staff also reviewed documents that were
incorporated by reference including, but not limited to, Acceptable Use
Policies, Terms and Use Policies, Terms of Service Policies, etc.
Collectively, the agreements researched represent more than 50% of all gTLD
domain registrations or approximately 50 million domain names. A selection
of these agreements and their abuse-related provisions are presented in this
chapter.
                
                [....]
                
                Discussion of possible directions
                
                §  The research compiled in this report does suggest that:
                
                o      There is no uniform approach by registries /
registrars to address abuse.
                
                o      Based on the use of terms evident in this research,
there appears to be no universally accepted definition of what constitutes
abuse.
                
                o      Many registry agreements explicitly allow registries
to take down or terminate domain names for abuse at the companies?
discretion, Service providers routinely reserve the right to exercise their
best judgement and take action when necessary, especially in an environment
where new threats and forms of abuse frequently arise.
                
                o      There are a number of registries that do not have any
provisions that deal with abuse. However, this does not necessarily mean
that they do not deal with complaints of domain name abuse when they arise.
Further research would be needed to determine if and how abuse is dealt with
in those registries that do not have any specific provisions in place. 
                
                o      It should be emphasised that this report does not
identify how these registration abuse provisions are adhered to, are
implemented in practice or deemed effective in addressing registration
abuse.
                
                § There may be benefits to establishing a consistent
framework or definition of registration abuse that is applicable across
ICANN accredited registries and registrars. In addition, certain providers
may define acceptable use policies based on unique or relevant aspects of
the services they offer. In examining the possibility of establishing a
uniform or consistent framework, it would be useful to understand better
whether registries have unique requirements that may call for differing
approaches and definitions. Any new framework and/or definition of
registration abuse should also be flexible enough to deal with the rapid
changing environment in which registration abuse develops and takes place.
Staff suggests that before policy changes are considered, it would be useful
to understand if registration abuses are occurring that might be curtailed
or better addressed if consistent registration abuse policies were
established. 
                
                Staff recommendation
                
                §  ICANN staff recommends that the GNSO Council:
                
                o   Review and Evaluate Findings 
                
                A first step would be for the GNSO Council to review and
evaluate these findings, taking into account that this report provides an
overview of registration abuse provisions, but does not analyse how these
provisions are             implemented in practice and whether they are
deemed effective in addressing registration abuse.
                
                o   Identify specific policy issues
                
                Following the review and evaluation of the findings, the
GNSO Council would need to determine whether there are specific policy
issues regarding registration abuse.  As part of this determination it would
be helpful to define the specific type(s) of abuse of concern, especially
distinguishing between registration abuse and other types of abuse if
relevant.
                
                o   Need for further research 
                
                As part of the previous two steps, ICANN Staff would
recommend that the GNSO Council determines where further research may be
needed ? e.g. is lack of uniformity a substantial problem, how effective are
current registration abuse provisions in addressing abuse in practice, is an
initial review or analysis of the UDRP required?
                
                
                
                
                


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