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

[berrycobb@xxxxxxxxxxxxxxxxxxx]

Greg,

Thank you for the revision.  My apologies for my late response, as I  
logged a 12 hour stint viewing what works and what doesn?t within the  
healthcare industry today.
I did not get the feedback I was looking for, so we can go to print  
with the version you created below.  However, I do propose one  
enhancement.  I do not think the opposition, for lack of a better  
title, seeks for ICANN to make policy for ANY & ALL uses of domain  
names.  Rather, we are seeking policy action on the use abuses  
identified and agreed on by the community.  For example the use abuses  
identified within the Malicious Use recommendation.  For those that  
feel they belong to the opposition, please chime in if I misstated here.
Greg?s 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. ?
Berry?s Revision to Greg?s 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  
community defined use abuses of domain names. ?
Also, I have one edit to the Conclusion section.  I had missed that  
section in my review over the weekend, as I thought it was a part of  
the public comments.  The revision is similar to above:
Current Version (Page115, Paragraph 3, Line 8):
Another set of community members feels strongly that ICANN can  
regulate any thing that occurs on or through gTLD domain names.
Proposed Revision:
Another set of community members feels strongly that ICANN should only  
regulate areas where identified abuse approved by the community occur  
on or through gTLD domain names.
Thank you.


Berry Cobb
Infinity Portals LLC
berrycobb@xxxxxxxxxxxxxxxxxxx
http://www.infinityportals.com
866.921.8891

From: owner-gnso-rap-dt@xxxxxxxxx [mailto:owner-gnso-rap-dt@xxxxxxxxx]  
On Behalf Of Greg Aaron
Sent: Monday, May 24, 2010 10:19 AM
To: gnso-rap-dt@xxxxxxxxx
Cc: berrycobb@xxxxxxxxxxxxxxxxxxx
Subject: [gnso-rap-dt] Barry's draft language regarding use

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






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Greg Aaron
Director, Key Account Management and Domain Security
Afilias
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fax: 1.215.706.5701
gaaron@xxxxxxxxxxxx
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