Re: [gnso-vi-feb10] Fwd: DAG4 Summary for report bullet #3

[Richard Tindal <richardtindal@xxxxxx>]

Because the DAG4 is the baseline position and if people don't understand it  
(and without a good summary I don't believe a lot of people will understand it) 
 
I think it affects how they react to all the proposals in our report.

I'll go kick the dog,  walk around the block,  and send another version of 
bullet #3 

Mikey - please give me another hour to get this closed out

RT


On Jul 20, 2010, at 12:03 PM, Tim Ruiz wrote:

> 
> Why are we continuing to debate this? Richard, I don't anyone else in
> support of including that interpretation, correct? If not, then just
> summarize what DAGv4 actually says without interpreting it and let's
> close this thread out.
> 
> Tim  
> 
> -------- Original Message --------
> Subject: Re: [gnso-vi-feb10] Fwd: DAG4 Summary for report bullet #3
> From: Richard Tindal <richardtindal@xxxxxx>
> Date: Tue, July 20, 2010 12:53 pm
> To: Gnso-vi-feb10@xxxxxxxxx
> 
> Bullet #3 of my DAG summary (below) is based on the principle that
> something not prohibited by the DAG is permissible.     2% to 100%
> non-Beneficial Ownership is not prohibited by the DAG,  therefore it is
> permitted.      Let me frame the question this way.   If the DAG
> completely omitted provisions limiting Beneficial Ownership (i.e.  there
> was no mention of it, or of 2%) would we not conclude that 100%
> Beneficial Ownership was allowed?    According to your approach we would
> not.    Your approach argues that if the DAG was silent on ownership
> levels we would not know what is allowed.  
> 
> 
> I gave an example yesterday of how this could work in practice -- 
> http://forum.icann.org/lists/gnso-vi-feb10/msg02887.html.   
> Alternately, there are many instances of assets managed in trust where
> the asset owner does not have control -- e.g.  stock owned by a Senator
> who sits on an industry oversight committee.
> 
> 
> In the interest of compromise I propose we reword bullet #3 this way:
> 
> 
> 3.    The DAG appears to allow a registrar entity or their Affiliate to
> own more than 2% of the shares in a registry company if those shares are
> not Beneficially Owned (i.e.  they must not have the power to decide
> disposal of the shares, and the shares must not have voting rights).  We
> have asked the staff for a clarification of this interpretation. 
> 
> 
> RT
> 
> 
> Original bullet 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).   
> 
> 
> 
> 
> 
> 
> 
> 
> 
> 
> 
> 
> 
> 
> 
> On Jul 19, 2010, at 4:58 PM, Jeff Eckhaus wrote:
> 
> Hi,
> 
> I still have an issue with Bullet point 3, as I believe this is an
> interpretation of the DAG and is not a fact. I also believe that this is
> a conceptual idea and makes it seem that the door is really open for
> ICANN Registrars, but is not based in reality. The DAG states no ICANN
> accredited Registrars.
> I would also ask for examples where this exists in business, either for
> profit or non-profit. Is there any occasion where someone can own 100%
> of a company, but can never vote, control or dispose of the shares. That
> you are stuck with the investment in this entity forever. This makes no
> sense to me and do not believe this was the intent of ICANN when they
> used the terms beneficial ownership and the 2% level.
> Until ICANN staff or ICANN Board comes out and agrees to this belief , I
> ask that this not be included in this report or any statement of fact
> surrounding DAGv4.
> 
> 
> 
> 
> From: owner-gnso-vi-feb10@xxxxxxxxx
> [mailto:owner-gnso-vi-feb10@xxxxxxxxx] On Behalf Of Richard Tindal
> Sent: Monday, July 19, 2010 12:28 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.  
> 
> 
> 
> 2.   A registrar entity or their Affiliate may Beneficially Own up to 2%
> of shares in another company that can hold a registry contract
> 
> 
> 
> 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).   
> 
> 
> 
> 4.   In no circumstance may a registry entity Control a registrar or its
> Affiliates, or vice versa.    
> 
> 
> 5.   Affiliates of the registry entity may not distribute names in any
> TLD -- as either a registrar, reseller or other form of domain
> distributor
> 
> 
> 
> 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. 
> 
> 
> 
> 7.   Names can only be registered through registrars
> 
> 
> 
> 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). 
> 
> 
> 
> 9.   Participating registrars must be treated on a non-discriminatory
> basis
> 
> 
> 
> 10. Registries can register names to themselves
> 
> 
> 
> 
> 
> 
> 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
> 
> 
> 
> 
> 
> 
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