[gnso-rap-dt] Barry's draft language regarding use

["Greg Aaron" <gaaron@xxxxxxxxxxxx>]

Dear Berry:

 

Thanks for your work.  Here are some notes; I look forward to your thoughts.

 

BERRY'S DRAFT, circa page 25:

 

"To the contrary of aforementioned distinctions about Registration abuse and
Use abuse within the context of abuse as we have defined, many members of
the RAPWG are of the opinion there is NO distinction.  It is argued that a
difference between Registration Abuse and Use Abuse cannot be reasonably
expressed.  A domain name cannot be used unless it is registered; therefore
any abuse of a registered name is registration abuse.  UDRP is one of the
most prevalent examples where ICANN policy scope ventures in to the realm of
domain use.  Further there are several examples within ICANN scope
agreements where use of domains are listed and especially with respect to
contributory liability is concerned.  Finally, the concern about this debate
within the vacuum of dealing with "use abuse" is that if not addressed
adequately, not only will abuse expansion continue relative to growth, but
ICANN and its contracted parties will likely be in the position where terms
of addressing abuse will be dictated.  It is our duty as stakeholders of the
community to become more proactive in mitigating and preventing all forms of
abuse where practical and feasible. 

Note:

Given the consistent debate of Registration vs. Use throughout the RAPWG,
the group recognizes it extends beyond the purview of the WG and touches
many other aspects within the ICANN policy realm.  Therefore the RAPWG
achieved unanimous consensus that the debate will not be solved here and
recommends that the GNSO determine a platform through consultation with
ICANN Legal, the ICANN board, and other Stakeholder groups as necessary to
resolve this debate."

 

 

PROPOSED REVISION:

 

"Some members of the RAPWG are of the opinion that a difference between
registration abuse and use abuse cannot be reasonably expressed.  Their
opinion is that a domain name cannot be used unless it is registered, and
therefore any abuse of a registered name is registration abuse.  Stated
another way, these members believe that policies involving the use of a
domain name unrelated to its registration are inside the scope of policies
that ICANN can enforce on registries and/or registrars, and  ICANN can make
policy regarding any or all uses of domain names. "

 

 

NOTES: 

 

The sentence that begins "Stated another way" is designed to make the
concept clear by contrasting it to the opposing view.  It re-uses some
language in the report.  Does it work for you?

 

Barry, I cut this sentence pending further discussion: "Further there are
several examples within ICANN scope agreements where use of domains are
listed and especially with respect to contributory liability is concerned."
In the past you have referred to  'ICANN scope agreements' as including
registrar-registrant agreements and various terms of service -- but much of
what's in those has nothing to do with ICANN requirements.  If there are RAA
or ICANN-registry contract clauses where use of domains are listed, please
point those out specifically so we can figure out some language.

 

I cut this sentence pending further discussion: "UDRP is one of the most
prevalent examples where ICANN policy scope ventures in to the realm of
domain use."   I suggest this could use further precision, because it could
be read to state that ICANN made UDRP policy about use.    But the rationale
behind the UDRP is a registration problem, and UDRP takes use into account
as a demonstration of bad faith.  The registration issue is the assigned
domain name string itself (a problem of unique assignment).  This is all
consistent with what the General Counsel's office said in the Issues Report
about Consensus Policy: "The use of domain names may be taken into account
when establishing or changing registration policies".

 

The sentence ".ICANN and its contracted parties will likely be in the
position where terms of addressing abuse will be dictated" seems like a
controversial  opinion.  We do not know if everyone in the group who holds
the view about ICANN scope also holds that opinion.   If left in, perhaps it
would be safer to attribute the statement. 

 

I also cut the sentence:  "It is our duty as stakeholders of the community
to become more proactive in mitigating and preventing all forms of abuse
where practical and feasible."  I think all members of the WG are very
concerned about abuse and want to do something about it.  The group has
honest disagreements about what's practical and feasible to do.    People on
one side or the other should not be painted as being in favor of abuse.

 

The Conclusion of the Final Report discusses the debate of Registration vs.
Use and how the Council may need to keep it in mind etc.

 

All best,

--Greg

 

 

 

 

 

 

**********************************

Greg Aaron

Director, Key Account Management and Domain Security

Afilias

vox: +1.215.706.5700

fax: 1.215.706.5701

gaaron@xxxxxxxxxxxx 

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