RE: [gnso-res-sga] Working Proposal for Sub-Group A

["Scoville, Adam" <ascoville@xxxxxxxxx>]

Chris - 

This is an interesting proposal, and given that the subgroup's role is
(as I understand it) more to raise proposals than recommend a particular
one, is worthy of inclusion in whatever we 'report' (I use that term
loosely) to the full group. 

That said, here are a couple of comments of mine, since unfortunately, I
will only be able to join tomorrow's call late, if at all.

(1)(a) - Accreditation of OPoCs by ICANN: This seems a monumental task
unless "accreditation" consists merely collecting some record of assent
to some kind of contractual terms setting out the OPoC's duty. It may be
true that accreditation is possibly the only way to give ICANN a
contractual relationship with the OPoC, I'm interested to see how this
would be practical, or if we are committed to having the OPoC system
incorporate the costs necessary to make the system run.

(3)(j) - This paragraph addresses some of the issues I mentioned on last
week's call regarding the adequacy of notice to the registrant.  A
couple of additions:
--- The sufficiency of the notice should be specified not only in the
accreditation agreement the OPoC has with ICANN, but in the OPoC's
agreement with the registrant (through terms dictated by the conditions
of accreditation) and/or through the domain registration agreement
(through terms dictated by terms of the RAA). The reason is that notice
(on the most basic level) is an obligation on the party providing
notice, to prove that it has been provided to the party receiving
notice.  So the only chance of it being considered valid is if the
registrant agrees that the notice was valid. But as Steve pointed out
last call, national law is highly variable and while this is perhaps the
best we can do, there's no guarantee it will be adequate in all cases.
--- The Registrant should agree not only that it won't challenge the
timeliness of the notice (i.e. that it should be considered to have been
delivered to the registrant when it was delivered to the OPoC), but also
that it won't challenge the validity of the manner of providing notice
if it was provided to the OPoC. 

I note that the proposal leaves open (in 3.i.ii) what the sanctions are
for non-compliance by the OPoC. So we still haven't totally solved the
enforceability problem. There needs to be some sanction that will cause
the OPoC to take the responsibilities seriously. Perhaps a safe harbor
from liability that disappears if the OPoC doesn't live up to its
responsibilities (rather than, in Steve D's original proposal, blanket
liability from the start). Even then, I'm a little reluctant about
liability that may exceed whatever applicable national law would provide
for someone deemed the owner of the name. 

- Adam




-----Original Message-----
From: owner-gnso-res-sga@xxxxxxxxx [mailto:owner-gnso-res-sga@xxxxxxxxx]
On Behalf Of Christopher Gibson
Sent: Tuesday, May 15, 2007 6:40 PM
To: 'Steven'; gnso-res-sga@xxxxxxxxx
Cc: philip.sheppard@xxxxxx; 'Maria Farrell'
Subject: [gnso-res-sga] Working Proposal for Sub-Group A

Dear Steve and sub-group A members,

I am attaching a working proposal (in Word) for consideration of
sub-group
A.  There's no pride of authorship to this document.  Hopefully, some of
the
ideas or language will prove helpful, and it also makes clearer the
implications of sub-group A's work and relationship to sub-group C.

Chris Gibson