RE: [gnso-vi-feb10] Question to WG on RAA

["Michael D. Palage" <michael@xxxxxxxxxx>]

Jeff,

 

I totally welcome and support using the PDP as a means to find a middle
ground point of consensus.

 

I also like your .APPLE hypothetical about allowing consumers to go direct
(registry-registrant) which I also support. In fact it reminds me of a quote
ICANN's original General Counsel Louie Touton use to say:

 

ICANN is about promoting competition, not protecting competitors

 

Therefore you hit the nail on the head, the fact that "not all registrars
are happy" about this true vertical integration approach is really not
relevant from an economic standpoint as they are concerned about protecting
their business interests and not promoting competition. In fact this same
logic potentially applies equally as well to the registries. Let's focus on
promoting competition with adequate safeguards to protect consumers/end
users. Richard Tindal has previous advocated that when/if something goes
wrong there are appropriate governmental bodies to handle these situations.
However, I have a very grave concern about this approach.

 

I believe it sends the wrong message to the global community that ICANN is
creating a process with no internal safeguard mechanisms to protect
consumers and that is something goes wrong governments will step in and
correct the problem. 

 

Best regards,

 

Michael

 

 

 

 

 

 

From: owner-gnso-vi-feb10@xxxxxxxxx [mailto:owner-gnso-vi-feb10@xxxxxxxxx]
On Behalf Of Jeff Eckhaus
Sent: Tuesday, March 30, 2010 2:52 PM
To: Gnso-vi-feb10@xxxxxxxxx
Subject: RE: [gnso-vi-feb10] Question to WG on RAA

 

 

As for the past process, this was not a negotiation with one side having to
concede points to the other and should not be thought of that way. If it
was, then the two parties to the negotiation would be able to jointly make a
decision after they reached a compromise, which we know was never an option.
I am not a lawyer, but I would think when you are trying to make your case
to a 3rd party that decides , you plead your case as hard as you can and
hope to win. This was the status of the world we were living in before the
Board decision, but now we are in a PDP, so lets work within that world. 

 

Switching topics , I would like to bring up a point for discussion that I
think is being missed here, is that if there is Vertical Integration ,
registries will now be able own registrars and run a registrar. This is not
a one way move where only registrars will be able to be a registry. It is a
two way street . 

 

In truth, not all registrars are asking for an opening of the marketplace to
a vertically integrated suppliers where registries will now be able to
compete.  I know this is not a perfect example, but it is similar to  Best
Buy, Dixons and Amazon stating that they are OK with Apple opening up
physical stores and an online store.  Not all registrars are happy with this
since there will be more competition and now you will be able to get a
domain from "the source". Many customers will find this option more
attractive and switch their purchases to the VI entity. How many people who
purchased their items at resellers, now go to the Apple store because they
trust buying it there versus Best Buy? 

 

 

Jeff

 

 

 

 

From: Michael D. Palage [mailto:michael@xxxxxxxxxx] 
Sent: Monday, March 29, 2010 9:15 PM
To: 'Jon Nevett'
Cc: 'Richard Tindal'; Jeff Eckhaus; Gnso-vi-feb10@xxxxxxxxx
Subject: Re: [gnso-vi-feb10] Question to WG on RAA

 

Jon,

 

I think one of the objectives in the Board passing the rather draconian
Nairobi resolution was to seek those parties (registrars/registries) that
have been on opposite sides of the argument to find a neutral middle ground
with the non-contracting parties and ALAC serving as a moral compass on this
issue. What strikes me odd regarding most of the proposals to date from you
and the registrars is that they appear to be one sided, i.e. registries must
budge with little to no concession from the registrars.  If I am wrong
please tell me what major points you and the other registrars have conceded
from your previous positions.

 

I think if the non-contracting house is to support the registrar's right to
have co-ownership or be vertically integrated with registries, that
registrar group that has been touting their commitment to consumer rights
would agree that expanding the PDDRP to include the entire registration
authority (registrar/registry) is responsible and prudent.  

 

With regard to the IRT discussion, remembers individual experts such as
myself were permitted to participate in the one whole day session at San
Francisco.  WIPO started off the day with a 90-120 minute presentation and
if I recall this was raised, and my recollection was there was a concern
raised by you. If I am mistaken and you never opposed the expansion of PDDRP
to registrars, then I apologize. However, if you did oppose the expanse of
the PDDRP I think this group would find an explanation of that opposition
insightful.

 

While the expanse of the RAA liability was a positive step in the right
direction in connection with group registrars, I think that same group
liability concept needs to be expanded to the whole registration authority
operation based on the same logic it was previously expanded. 

 

Best regards,

 

Michael

 

 

 

From: owner-gnso-vi-feb10@xxxxxxxxx [mailto:owner-gnso-vi-feb10@xxxxxxxxx]
On Behalf Of Jon Nevett
Sent: Monday, March 29, 2010 11:13 PM
To: Michael D. Palage
Cc: 'Richard Tindal'; 'Jeff Eckhaus'; Gnso-vi-feb10@xxxxxxxxx
Subject: Re: [gnso-vi-feb10] Question to WG on RAA

 

Mike:

 

First, Richard's question was what are the provisions in the current RAA
that you would have concerns with applying to an integrated
registry-registrar.  I don't think he asked what changes to the RAA would
you want to see.  

 

Second, I'm not sure what you heard about the internal IRT discussions, but
you must have forgotten that the IRT actually recommended that the Post
Delegation Dispute Resolution Procedure should take into account misconduct
by affiliated registrars with regard to PDDRP sanctions.  This is consistent
with the recent change to the RAA -- approved by the registrars -- regarding
group liability.  Under the new RAA, a registrar now may be sanctioned based
on the acts of an affiliated registrar.

 

Thanks.

 

Jon

 

 

On Mar 29, 2010, at 9:22 PM, Michael D. Palage wrote:

 

Richard,

 

There would need to be an additional provision incorporated into the RAA for
those registrars that had a co-owned / vertical integrated registry. The
scope of the Post Delegation Dispute Resolution Procedure would  need to
apply to both the Registry and the Registrar, parent/child/subsidiary.

 

As I am sure J Scott and others in the IPC would want to prevent a registrar
affiliate or a sister company engaged in affirmative acts found infringing
the right of others  to avoid accountability merely because they funneled
such activity through a registrar not subject to the PDDRP. In fact I
believe WIPO in the comments have also talked about expanding the scope of
the PDDRP beyond registries.

 

I know Jeff Neuman originally raised this in the IRT, but I believe there
was push back from the Registrars.

 

Would you not agree Richard, Jeff E, and Jon that seems like a reasonable
safeguard registrars would want to make?

 

Best regards,

 

Michael

 

 

From: owner-gnso-vi-feb10@xxxxxxxxx [mailto:owner-gnso-vi-feb10@xxxxxxxxx]
On Behalf Of Richard Tindal
Sent: Monday, March 29, 2010 8:19 PM
To: Jeff Eckhaus
Cc: Gnso-vi-feb10@xxxxxxxxx
Subject: Re: [gnso-vi-feb10] Question to WG on RAA

 

I agree with jeff e.     Would be very helpful to know what provisions of
the current raa are unacceptble (or unattractive) to any potential, combined
registry--registrar.    Let's get these details on the table so we can start
fixing things

 

Rt

Sent from my iPhone


On Mar 29, 2010, at 6:19 PM, Jeff Eckhaus <eckhaus@xxxxxxxxxxxxxxx> wrote:

Michael - as you stated, these are provisions in the draft Registry
agreement, not the RAA (Registrar Accreditation Agreement) which had been
the topic of my email.

 

As for the WG  there has not been a major response to my initial question of
what are the concerns with either signing the RAA or having a Registry
agreement that incorporates the RAA? In earlier emails people were against
it and was an option multiple times in the survey that was distributed, so
there must be a reason people are against signing it.

 

I was hoping we could start the dialogue on the list on this issue or others
as we wait  for the proposals to roll in.

 

 

Jeff

 

 

 

From: Michael D. Palage [mailto:michael@xxxxxxxxxx] 
Sent: Monday, March 29, 2010 10:35 AM
To: Jeff Eckhaus; Gnso-vi-feb10@xxxxxxxxx
Subject: RE: [gnso-vi-feb10] Question to WG on RAA

 

Jeff,

 

I have a hard time reconciling your and Jon's interpretation of ICANN
contractual regime.  How about we ask ICANN's general counsel to interpret
the following contractual provisions in the draft registry agreement.

 

2.9 Use of Registrars. Registry Operator must use only ICANN accredited
registrars in registering domain names.

 

2.6 Reserved Names  .. If Registry Operator is the registrant for any domain
names in the

Registry TLD (other than the Second-Level Reservations for Registry
Operations from Specification 5),

such registrations must be through an ICANN accredited registrar...

 

Best regards,

 

Michael

 

 

 

 

From: owner-gnso-vi-feb10@xxxxxxxxx [mailto:owner-gnso-vi-feb10@xxxxxxxxx]
On Behalf Of Jeff Eckhaus
Sent: Monday, March 29, 2010 12:45 PM
To: Gnso-vi-feb10@xxxxxxxxx
Subject: [gnso-vi-feb10] Question to WG on RAA

 

I would like to ask a question to the people in this Working Group on the
issue of having a Registry sign the RAA. What is the section of the RAA that
people are so virulently opposed to? I believe this is an issue that may be
getting muddled so would like to bring it out in the open.

 

The RAA does not mandate that the use of Registrars in every business model.
That provision is in the Registry agreement. The provision in the RAA is
below that explains this issue:

 

2.4 Use of ICANN Accredited Registrars. In order to promote competition in
the registration of domain names, and in recognition of the value that
ICANN-accredited registrars bring to the Internet community, ICANN has
ordinarily required gTLD registries under contract with ICANN to use
ICANN-accredited registrars, and ICANN will during the course of this
agreement abide by any ICANN adopted specifications or policies requiring
the use of ICANN-accredited registrars by gTLD registries.

 

 

.         The RAA  mandates that the Registrar must abide by Domain dispute
resolutions. Is this the item in the RAA that some are opposed to?

.         The requirement to escrow data?

.         The RAA has a schedule of fees to be paid by the Registrar. Is it
the fees?

.         Registrar Training requirements?

.         Having to delete a domain within 45 days of registrar or
registrant terminating a registration agreement ?

.         The requirement to maintain insurance with a limit of at least
$500,000 ?

 

 

I am hoping we can discuss this issue on the list and maybe figure out what
are the concerns with either signing the RAA or having a Registry agreement
that incorporates the RAA?

 

For those who have never read the RAA, here is a link to the latest version
http://www.icann.org/en/registrars/ra-agreement-21may09-en.htm

 

 

 

Thanks

 

Jeff