RE: [gnso-vi-feb10] Fwd: DAG4 Summary for report

["Thomas Barrett - EnCirca" <tbarrett@xxxxxxxxxxx>]

Richard,
 
thanks for explanation.
 
tom
 

  _____  

From: owner-gnso-vi-feb10@xxxxxxxxx [mailto:owner-gnso-vi-feb10@xxxxxxxxx]
On Behalf Of Richard Tindal
Sent: Monday, July 19, 2010 6:28 PM
To: Gnso-vi-feb10@xxxxxxxxx
Subject: Re: [gnso-vi-feb10] Fwd: DAG4 Summary for report


Thanks Tom.  Good suggestion.  It's all in Section 2.9 of the draft registry
agreement and in Module 1, Section 1.2.1.    I've included the relevant
sub-para in CAPS in the bullet list.  

Regarding your comment on bullet #3.  You're suggesting the DAG may have
been worded poorly and created a loophole the staff/ Board didn't intend.
I think that's illogical for two reasons:

1.  Why would the document go to lengths to define 'Beneficial Ownership' if
their intent was to prohibit all forms of ownership above 2%?  It would have
been a simple matter to define the limit as 2% of any type of share.

2.  A unifying theme of the DAG4 language is the limiting of control between
registries and registrars.   Non-Beneficially Owned shares don't give
control  - which is why the DAG is OK with them.   For example,  you (a
registrar) and I (not a registrar) could go into 50/ 50 (say) joint venture
as a registry.     That would be permitted by the DAG as long as your shares
weren't voting and you couldn't make the decision to sell your shares.  I
would be making the business decisions and you would receive dividends per
our shareholder agreement.  If I decided to sell the business you could
derive the benefit from the sale of your shares - however you couldn't make
the decision to sell the business (in the DAG this is called "the power to
dispose, or to direct the disposition").  By the way,  we also couldn't have
a side arrangement or understanding --   as that is specifically prohibited
in Section 2.9b.

That's what the DAG4 says.   Having said all that,  I'm OK with us asking
the staff --   "Is it a correct interpretation that non-Beneficial Ownership
is permitted above 2% as long as control is not present?".

Regarding your comment on bullet #6.  I agree that clarity is needed on the
definition of Registry Services in the context of cross ownership rules.
You're arguing that only a registry can auction never-before-sold premium
names ,  therefore those auction services are a 'Registry Service'
(Specification 6 para 2d.).    This was also brought up with Kurt in
Brussels.  

RT

 

On Jul 19, 2010, at 1:26 PM, Thomas Barrett - EnCirca wrote:


Richard,
 
I would like to propose something which might bring greater clarity to these
10 bullets.
 
for each bullet, could you add the specific section and paragraph in the
DAG4 that these bullets are generated from?
 
I think bullet #3 is an interpretation of the DAG4 and does not represent a
scenario one would expect to find in practice.  The question is: is this
intentional or is it a loophole that will be closed?
 
Also, I think the definition of "Registry Services" has evolved from
previous agreements and should be highlighted.  For example, many of the
registries have recently auctioned previously reserved names.
 
regards,
 
tom
 

  _____  

From: owner-gnso-vi-feb10@xxxxxxxxx [mailto:owner-gnso-vi-feb10@xxxxxxxxx]
On Behalf Of Richard Tindal
Sent: Monday, July 19, 2010 3:28 PM
To: Gnso-vi-feb10@xxxxxxxxx
Subject: [gnso-vi-feb10] Fwd: DAG4 Summary for report


Jeff N, 

Per todays call, let's drill down on whether we think the 10 bullets below
are accurate statements of what's in the DAG4.   

As Mikey said,  let's agree on the ones we agree,  and identify those where
we interpret the DAG differently.  Those latter ones are presumably the
ambiguous issues.    I can only find one potentially ambiguous issue - and
that's in point 6. below.   It's not clear to me whether the DAG prohibition
on registrars providing back-end Registry Services applies to a registrar
who provides just one component of those Services (e.g.  Escrow only).     I
note this issue was raised with Kurt several times in Brussels and he
undertook to clarify.

Can we also agree that we're not going to comment on what the DAG4 'should
say' or 'meant to say'.    Let's just focus on summarizing the specific
words in the DAG.

Make sense?

Richard



Begin forwarded message:


From: Richard Tindal <richardtindal@xxxxxx>

Date: July 18, 2010 11:08:10 PM PDT

To: Gnso-vi-feb10@xxxxxxxxx

Subject: Re: [gnso-vi-feb10] DAG4



I agree with Milton about the DAG4 language.  It's complex to read, but it's
also precise and unambiguous.    As Milton says, the underlying concept is
simple.   It's about control.

The key to understanding it is the definitions of 'Control' and 'Beneficial
Ownership'.  These terms are carefully defined in Section 2.9 (c) of the
draft Registry contract -- which should be read first.    Control is the
power to cause the direction of management or policies.  Beneficial
Ownership of shares means the ability of those shares to vote,  or the power
to direct the sale of those shares.

Here's a summary of some important, DAG4 rules:

1.   A registrar entity or their Affiliate (another company with whom the
registrar has common Control) may not directly hold a registry contract.
This applies regardless of the TLD(s) in which the  registrar is accredited.
REF:   SECTION 2.9(A)

2.   A registrar entity or their Affiliate may Beneficially Own up to 2% of
shares in another company that can hold a registry contract     REF:
SECTION 2.9(B)


3.   A registrar entity or their Affiliate may own 100% of the shares in
another company that can hold a registry contract.  However,  the registrar
entity or Affiliate must not have the power to decide disposal of those
shares, and the shares must not have voting rights  (i.e.   the shares must
not be Beneficially Owned).         REF:  SECTION 2.9(B)


4.   In no circumstance may a registry entity Control a registrar or its
Affiliates, or vice versa.    REF:  SECTION 2.9(B)


5.   Affiliates of the registry entity may not distribute names in any TLD
-- as either a registrar, reseller or other form of domain distributor
REF:  SECTION 2.9(A)


6.   No registrar, reseller or other form of domain distributer (or their
Affiliates) may provide Registry Services to a registry entity.  Registry
Services are defined in Spec 6 to the contract.          REF:  SECTION
2.9(A)


7.   Names can only be registered through registrars   REF:  SECTION 2.9(A)


8.   Registries can set accreditation criteria for registrars that are
reasonably related to the purpose of the TLD  (e.g.   a Polish language TLD
could require registrars to offer the domain via a Polish language
interface).    REF:  SECTION 2.9(A)


9.   Participating registrars must be treated on a non-discriminatory basis
REF:  REGISTRY AGREEMENT SECTION 2.9(A)


10. Registries can register names to themselves    REF:  SECTION 2.9(A)


I offer these bullets only as a data point for the group.  I'm happy for
someone else to draft the actual text for inclusion in the Report.

Regardless of who prepares this I think it's extremely important that report
readers have a summary of DAG4.    I feel there is a significant level of
misunderstanding in the community about the DAG4 rules.   As it's the
baseline position on this issue, including the basis for proposed
exemptions,  I think our report will be much less useful if we fail to
factually summarize the DAG. 

RT


On Jul 16, 2010, at 7:05 PM, Milton L Mueller wrote:



Jeff,
I don't agree. DAGv4 is pretty simple in concept, it's an attempt to
translate the Nairobi resolution into practice. I don't have any objection
to Richard summarizing it. 



-----Original Message-----


From: owner-gnso-vi-feb10@xxxxxxxxx [mailto:owner-gnso-vi-


feb10@xxxxxxxxx] On Behalf Of Jeff Eckhaus


Sent: Friday, July 16, 2010 7:59 PM


To: Gnso-vi-feb10@xxxxxxxxx


Subject: RE: [gnso-vi-feb10] Re: "Rules" for proposal-summaries and


Principles-summaries




I have been thinking about this and believe that a summary written by a


WG member is not appropriate. (No offense to Tindal on this)



The other proposals such RACK, JN2, Free trade were authored by members


of this group and asking the authors and collaborators of those


proposals to summarize their work makes sense.  They understand the


ideas, details and logic of their proposal and can express those in a


summary.



The DAGv4 was written by Staff and to have a 3rd party summarize their


work could be lead to interpretations and conclusions that the authors


did not intend. If we want to include DAGv4 we should include the exact


text in DAGv4, no editing of it, not just a few bullet points , but the


whole section related to CO/VI. Alternatively we could just have it in


the Annex




Jeff Eckhaus




-----Original Message-----


From: owner-gnso-vi-feb10@xxxxxxxxx [mailto:owner-gnso-vi-


feb10@xxxxxxxxx] On Behalf Of Richard Tindal


Sent: Friday, July 16, 2010 4:46 PM


To: Gnso-vi-feb10@xxxxxxxxx


Subject: Re: [gnso-vi-feb10] Re: "Rules" for proposal-summaries and


Principles-summaries




I may be suffering from some of Mikey's sleep deprivation, and losing


the plot on this,  but this is what I'm asking  ---  Given that the


Nairobi resolution has already been turned into detailed DAG4 language


(which we will summarize) what is the point of us trying to reinterpret


the resolution?



R





On Jul 16, 2010, at 4:36 PM, Eric Brunner-Williams wrote:



wow. i feel like i wrote a vanishing note.



Only our common (mis)interpretation of the resolution can explain our


acts in consequence.



Can you think of a currently contracted party not eliminated from re-


obtaining contracted party status, as a registry, by the Nairobi


resolution?



Do you think that is the self-evident reading of the Nairobi


resolution?



I don't.



Only we can explain our reading of the text, and therefore our


subsequent acts.



Eric



On 7/16/10 7:23 PM, Richard Tindal wrote:



Understand and agree



Given all you say about Nairobi though - how could you (or anyone


except a board member) turn it into other words?



I don't think any of us are able to turn Nairobi into a summary -


hence I think we just include the 70 word resolution itself.



RT




On Jul 16, 2010, at 4:06 PM, Eric Brunner-Williams wrote:



Richard,



What the resolution states is not what the working group understood


it to state, hence our original (and unanswered) questions to ... a


void.



Further, the Board resolution is not couched in language intended to


inform, and elicit, informed public comment.



The Board resolution language does not make plain that all 2001 and


all 2004 registries have liabilities, either actual ownership interests


by registrars, or use a registrar's technical facilities for the


registry's service provider.



The uninformed reader of the Board resolution has no way to grasp


from that one sentence that no registry contract will be concluded with


any existing contracted party.



Since we know this, we should make it known to the reader, else the


public comment we get will be unable to interpret those few words as we


do, and therefore be unable to correctly associate our work with the


Board's resolution.



Thanks for volunteering to do the 200 kind words on the sublime


beauty of DAGv4, I suppose I'm a likely candidate for 200 kind words on


the 2% less sublime beauty of Nairobi.



Eric








Please NOTE: This electronic message, including any attachments, may


include privileged, confidential and/or inside information owned by


Demand Media, Inc. Any distribution or use of this communication by


anyone other than the intended recipient(s) is strictly prohibited and


may be unlawful.  If you are not the intended recipient, please notify


the sender by replying to this message and then delete it from your


system. Thank you.