Re: [gnso-vi-feb10] The need to evaluate options in a consistent manner

[Jon Nevett <jon@xxxxxxxxxx>]

Comments below:

On Apr 9, 2010, at 10:40 AM, Neuman, Jeff wrote:

> Jon,
>  
>  I think you have missed my points, so it was probably my fault.
>  
> 1.  My point with respect to certain SRs are that there are no real 
> “registrar” functions or for that matter real ‘registry” functions.  In other 
> words, no need for EPP transactions, no need for a traditional registrar/end 
> user relationship, and no need for a WHOIS database as we know it today.

JN:  I agree that certain functions might not apply depending on the name will 
be used.  We should not pick and choose up front which requirements might apply 
based on potential use.  The SRs should sign up for the registrar requirements 
and protections, including maintaining a Whois database, so anyone in the world 
could see the contact information via Whois.  It would not be difficult to have 
every second level name listed in Whois with the same information.      
>  
> 2.  I NEVER said that contact information for the domain names should not be 
> provided.  Far from it.  What I said is that there is no need for the 
> traditional WHOIS database since the contact information for every name may 
> be the same person.  Thus, it should be acceptable for the owner of the space 
> to put up on its webpage that “Person X, Y, Z is the contact person for every 
> name” and “here is who you contact”.  There is no need for Port 43 WHOIS 
> access, nor any need to follow WHOIS protocols.

JN:  Disagree.  Some consumers rely on the Whois database -- contact 
information on the website might be insufficient.  What if the site stops 
resolving for some reason?  There is a thick whois requirement for New TLDs, 
should SRs be exempt from that as well? 
>  
> 3.  UDRP – this is an issue that needs to be explored, because I do believe 
> that a UDRP may be inapplicable to certain Single Registrant TLD, in that 
> there may be no mechanism to transfer a domain name.  That does not mean that 
> IPR complaints cannot be lodged, but I think your United example is pretty 
> weak in this situation as your example may or may not qualify for a single 
> registrant TLD.

JN:  Per the discussion with Fred, a UDRP could result in a take-down vs. a 
transfer.  Regardless of the SR name, an entity could use it to infringe on a 
competitor (i.e. neustrar.verisign, coke.pepsi, honda.toyota, etc.).
>  
> 4. I completely disagree with you that creating exceptions to Recommendation 
> 19 is out of scope, but certainly understand why you and Tim want it to be.

JN:  No doubt -- it seems like you have said so almost every day on this list, 
and I understand why you have done so.  
>  
> Jeffrey J. Neuman 
> Neustar, Inc. / Vice President, Law & Policy
> 
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>  
>  
> From: Jon Nevett [mailto:jon@xxxxxxxxxx] 
> Sent: Friday, April 09, 2010 10:04 AM
> To: Neuman, Jeff
> Cc: 'Gnso-vi-feb10@xxxxxxxxx'
> Subject: Re: [gnso-vi-feb10] The need to evaluate options in a consistent 
> manner
>  
> Folks:
>  
> Recommendation 19 says that registries must use registrars.  It doesn't say 
> that registries may not become registrars and handle registrar functions as 
> well.  In the SR use case, what is the big deal about having a registry 
> handle the registrar functions and being considered both a registry and 
> registrar?  As I have pointed out before, registrar functions include certain 
> consumer benefits, including all of the requirements in the RAA and Consensus 
> Policies. 
>  
> Here is an example -- let's say United Airlines gets .united as an SR -- only 
> it and its employees can use it.  At some point, they start selling 
> international storage services at www.storage.united.  Little did they know 
> that there is a storage company with the trademark United in South Africa.  
> The South African United would want to look at Whois to check the registrant 
> contact information of storage.united.  Various Whois requirements are in the 
> registrar agreement and should be enforced for all domain names.  If the 
> United SR didn't sign on to the registrar requirements, then they would not 
> sign on to the registrar Whois requirements.  Jeff has stated in the past 
> that these names might not need to be in Whois.  I don't agree, and I doubt 
> that many in ICANN community would be comfortable with a segment of domain 
> names not having Whois information available.  To continue with the example, 
> let's say that United Storage in South Africa wants to file a UDRP against 
> United Airlines to get the name taken down permanently.  Such a UDRP 
> complaint requires that registrars take certain actions.  If no entity signs 
> on to registrar obligations, there are UDRP requirements that cannot be 
> effectuated.  Would there be consumer harm with no effective UDRP?  I'm sure 
> that Milton could lead an interesting academic argument on that issue, but 
> there certainly would be harm to trademark holders.  Obviously, this is only 
> two examples.
>  
> My point has been that to re-open Recommendation 19 and to permit any names 
> to be registered without the use of a registrar would mean that we would have 
> to open up every Consensus Policy to determine the market and consumer 
> impacts of not having a registrar of record for every name.  To what end, 
> would we want to go through that process -- so an SR could operate as a 
> combined entity and not have to sign an RAA form also?  Again, what is the 
> big deal?  If we permit VI for SRs, then have them sign an RAA as an addendum 
> to their registry agreements.  Easy solution.  If the fees that a combined 
> entity would pay to ICANN is the issue, that certainly should be open for 
> discussion and debate.  
>  
> As for Jeff's history lesson, he doesn't say with whom he spoke with on 
> Council, but this exact SR issue was raised by Adrian Kinderis and discussed 
> by others during the debate on Recommendation 19 in Los Angeles in October 
> 2007.  After a protracted debate, the GNSO Council decided that every domain 
> name should be registered under the terms of the RAA and existing Consensus 
> Policies.  I agree with Tim that revisiting this issue is not in scope in 
> this WG and would continue to complicate our work and cause needless delays.  
> The arguments against Recommendation 19 are not new and should not be raised 
> here again to derail our work.  
>  
> We need to discuss what VI/CO rules should be in place and whether we want an 
> SR exception to such VI/CO rules if applicable NOT whether a combined SR 
> would need to be bound by the requirements of both the registry agreement and 
> the registrar agreement -- that issue was settled by Council.
>  
> Thanks.
>  
> Jon
>  
>  
> On Apr 9, 2010, at 8:21 AM, Neuman, Jeff wrote:
> 
> 
> This last week has been an interesting one on this list, but one in which I 
> believe we have taken hypocritical inconsistent approaches.
>  
> What is interesting to me is that many on the list are advocating that we do 
> not need to look at the competitive landscape among registry providers, but 
> rather we need to look at the benefits/harms to consumers when talking about 
> vertical integration/cross ownership at the registry level.  But when looking 
> at the registrar level, some of these same parties are arguing that we should 
> not look to the consumer benefits and harms, but rather only look at the 
> competitive landscape of registrar providers.
>  
> We need to choose to do one or the other and remain consistent in what we do. 
>  If we choose to look at the consumer harms/benefits of having vertical 
> integration / cross ownership at the registry level, then we need to look at 
> the consumer harms/benefits of having registrars in the first place 
> (especially with respect to single registrant and community based TLDs.   If 
> we choose to only look at the competitive landscape at the registrar level 
> (and not the consumer benefits/harms), then we should only look at the 
> competitive landscape at the registry level. 
>  
> Some registrars are conveniently citing GNSO Recommendation 19 as a reason 
> that we should not open up the discussion about having to use accredited 
> registrars.  They argue that that issue has been decided and we should not 
> look back.  I have actually talked to a number of GNSO councilors that were 
> on the council at the time Recommendation 19 was approved and many of them 
> assumed that the vertical separation requirements would remain at least what 
> they were today.  In other words, changing the VI/CO part of the equation 
> changes the assumptions that went into approving recommendation 19 in the 
> first place.  So if we change the VI/CO part of the equation at the registry 
> level, it is inconsistent (or possibly even hypocritical) to not open up the 
> other part of the equation at the registrar level. 
> 
> I am fine with either approach.  What I am not fine with is how a number of 
> registrars on this list want to have it both ways.  They argue that we must 
> look at the consumer benefits/harms of VI or CO at the registry level, but 
> want to dismiss looking at it at the registrar level.  They often cite “fear 
> of gaming” at the registrar level as the reason we should not delve into 
> issues of Single Registrant TLDs not having to use registrars.  Incidentally, 
> the Registries Stakeholder Group also argued the fear of gaming as a reason 
> to tighten the separation requirements between registries and registrars, but 
> that seems to have been lost in the noise because the same entities that 
> would have us look at the competitive landscape amongst registrars, do not 
> want to look at the competitive landscape amongst registries.
>  
> I know some registrars will attack this note, but I must request that the 
> chairs of this group apply consistency in how we work.  Either we consider 
> consumer harms/benefits at both the registry and registrar levels, or we do 
> not consider it at all at either level.  Like I said, I am fine with either 
> approach, so long as we are consistent.  The proposal Neustar submitted was 
> contingent on looking at both sides of the equation.
>  
> Jeffrey J. Neuman 
> Neustar, Inc. / Vice President, Law & Policy
> 46000 Center Oak Plaza Sterling, VA 20166
> Office: +1.571.434.5772  Mobile: +1.202.549.5079  Fax: +1.703.738.7965 / 
> jeff.neuman@xxxxxxxxxxx  / www.neustar.biz     
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>  
>