Re: [gnso-vi-feb10] DAG4 Summary for report

[Richard Tindal <richardtindal@xxxxxx>]

Jeff and Jeff,

Mikey needs to close this out.  Is it good to go?

RT


On Jul 20, 2010, at 6:57 PM, Richard Tindal wrote:

> Ok   I've removed the old bullet #3 and expanded bullet #2 to include the 
> DAG's definition of Beneficial Ownership
> 
> Here it is:
> 
> The following represents the Working Group's interpretation of the DAG4 
> language:
> 
> 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 have Beneficial Ownership of 
> up to 2% of the shares in a registry company.  Beneficial Ownership is a form 
> of ownership in which shares have (a) voting power, which includes the power 
> to vote, or to direct the voting of the shares; and/or (B) investment power 
> which includes the power to dispose, or to direct the disposition of the 
> shares
> 
> 3.   In no circumstance may a registry entity Control a registrar or its 
> Affiliates, or vice versa.    
> 
> 4.   Affiliates of the registry entity may not distribute names in any TLD -- 
> as either a registrar, reseller or other form of domain distributor
> 
> 5.   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 Specification 6 to the registry contract. 
> 
> 6.   Names can only be registered through registrars
> 
> 7.   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). 
> 
> 8.   Participating registrars must be treated on a non-discriminatory basis
> 
> 9.   Registries can register names to themselves
> 
> RT
> 
> 
> 
> 
> On Jul 20, 2010, at 4:45 PM, Jeff Eckhaus wrote:
> 
>> Sorry if I am being a pain in the ass here, but it does not appear to be 
>> allowed to me and to many others. I once again ask that we remove this 
>> bullet point all together since we are attempting to summarize DAGv4, and 
>> until we receive definitive answers from Staff, that is a guess and an 
>> interpretation
>>  
>>  
>> Jeff Eckhaus
>>  
>> From: owner-gnso-vi-feb10@xxxxxxxxx [mailto:owner-gnso-vi-feb10@xxxxxxxxx] 
>> On Behalf Of Richard Tindal
>> Sent: Tuesday, July 20, 2010 4:42 PM
>> To: Gnso-vi-feb10@xxxxxxxxx
>> Subject: Re: [gnso-vi-feb10] Fwd: DAG4 Summary for report bullet #3
>>  
>> the language in my bullet is that   "it appears to be allowed and that we 
>> asked the staff for clarification"
>>  
>> does that not work?
>>  
>> R
>>  
>>  
>> On Jul 20, 2010, at 4:19 PM, Jeff Eckhaus wrote:
>> 
>> 
>> I think the main issue I had is the idea that “on the principle that 
>> something not prohibited by the DAG is permissible”
>>  
>> There are so many items that are not expressly prohibited in the DAG, so 
>> does that make them permissible? For example is front running prohibited in 
>> the DAG? Is sharing of EPP data prohibited in the DAG? Maybe they are , but 
>> I think that I am making my point that unless it is written in the DAG than 
>> it is allowed
>>  
>>  
>> From: owner-gnso-vi-feb10@xxxxxxxxx [mailto:owner-gnso-vi-feb10@xxxxxxxxx] 
>> On Behalf Of Richard Tindal
>> Sent: Tuesday, July 20, 2010 4:01 PM
>> To: Gnso-vi-feb10@xxxxxxxxx
>> Subject: Re: [gnso-vi-feb10] Fwd: DAG4 Summary for report bullet #3
>>  
>>  
>> 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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>> 
>> 
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>>  
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