[Registrants-rights] Plain Language Summary of Registrant Rights and Responsibilities

[Holly Raiche]

Bill

Nice suggestion - but as they say

Plus ca change....

Holly
On 01/06/2012, at 3:45 PM, Bill Silverstein wrote:

> With ICANN's history, ICANN could never be trusted with enforcement.
> 
> Years ago, I suggested to Stacy Burnett that they could do enforcement
> against a registrar by prohibiting them from registering new domains for a
> period of time, but she responded since that mechanism is not the
> contract.
> 
> It has been six years, but nothing changed.
> 
>> Hi Bill
>> 
>> The only reason I mentioned clause 3.7.7.3 is that the case you cited was
>> about that clause - and why it would not apply to the appellant.
>> 
>> What I then said was that, as evidenced in the final final Whois Report,
>> ICANN compliance is woeful (it hardly takes a report to tell us that!)
>> 
>> But if we are to address issues such as was raised in the case, rather
>> than add to the RAA, let's start with the issues that the GNSO RAA
>> Subteams identified, pick out those that are outstanding - and ICANN
>> enforcement of the RAA is a BIG issue - and work from there.
>> 
>> (and yes, enforcement of clause 3.7.7.3 is amongst clauses that should be
>> enforced - rather than try to stretch it to cover 3rd party beneficiaries,
>> as raised by the case)
>> 
>> Holly
>> On 01/06/2012, at 3:12 PM, Bill Silverstein wrote:
>> 
>>> Holly,
>>> You are quite mistaken, or I am quite confused. ICANN has an atrocious
>>> record for enforcement of 3.7.7.3. 3.7.7.3 has the language for 3rd
>>> party
>>> beneficiary, but there is a clause negating that later.
>>> Unless there are meaningful fines for the registrar and penalties for
>>> the
>>> registrant who uses false information, there is no meaning to 3.7.7.3.
>>> Would registrars endorse meaningful fines against themselves?
>>> ICANN does not do any meaningful enforcement until AFTER THERE IS A
>>> MELTDOWN!
>>> 
>>> However, damages for loss under 3.7.7.3 does not apply to ICANN, but
>>> the
>>> "person" of the general public.
>>> 
>>> Any action under 3.7.7.3 is brought the registrant, not the registrar.
>>> If
>>> they are the same.
>>> 
>>> 
>>> 
>>>> First, thank you Bill for the citation.  It makes very interesting
>>>> reading
>>>> 
>>>> Next, I agree we don't need the third party beneficiary.  What was
>>>> needed
>>>> was compliance with clause 3.7.7.3 of the RAA.  The problem was that
>>>> Tucows would not reveal the name of the registrant (sending unsolicited
>>>> porn spam contrary to Californian law) who was using a privacy server
>>>> supplied by Tucows.
>>>> 
>>>> What the RAA informal working group talked about in Costa Rica was the
>>>> realisation that the way the RAA is written, in many respects it is
>>>> unenforceable - or ICANN Compliance simply do not have the resources
>>>> (or
>>>> will) to make compliance a meaningful concept in that context.
>>>> 
>>>> So rather than push for 3rd party beneficiary clauses, look to what is
>>>> already on the table.
>>>> 
>>>> First - compliance. The final final WHOIS report has strong things to
>>>> say
>>>> about the serious lack in this area.  We must keep pushing on this
>>>> front.
>>>> 
>>>> Next, the final final report also identified privacy and proxy servers
>>>> as
>>>> a problem.  Whether we continue to recognise both categories of servers
>>>> or
>>>> acknowledge that only privacy servers are a different beast and proxy
>>>> servers are really just agents for registrars - they must be accredited
>>>> and bound by the RAA - including clause 3.7.7.3
>>>> 
>>>> So, like Evan, I'd rather the problem is solved within ICANN.  I'm not
>>>> convinced 3rd party beneficiaries is the way to go.  There are other
>>>> tools
>>>> - let's insist they are meaningful and used
>>>> 
>>>> Holly
>>>> 
>>>> 
>>>> On 01/06/2012, at 5:44 AM, Evan Leibovitch wrote:
>>>> 
>>>>> On 31 May 2012 15:40, John R. Levine <johnl at iecc.com> wrote:
>>>>> 
>>>>>> This is EXACTLY the kind of issue that provides fodder to the ICANN
>>>>>> bashers
>>>>>>> out there. I would rather have the terms of a
>>>>>>> third-party-beneficiary
>>>>>>> clause negotiated within ICANN than forced from the outside by
>>>>>>> various
>>>>>>> national laws, in a hodgepodge manner that benefits nobody.
>>>>>>> 
>>>>>> 
>>>>>> I suppose, but given limited time and political capital, I think it'd
>>>>>> be
>>>>>> more productive to push ICANN to enforce the rules that already
>>>>>> exist.
>>>>>> 
>>>>>> Also, a third party beneficiary rule would not be an unalloyed good
>>>>>> thing.
>>>>>> While it would make it easier for Bill and Dan Balsam to go after
>>>>>> spammers
>>>>>> and other online criminals, it'd also give trademark lawyers yet
>>>>>> another
>>>>>> stick to use to attack innocent bystanders and legitimate parodists.
>>>>> 
>>>>> 
>>>>> Perhaps those two issues could be linked.
>>>>> 
>>>>> If ICANN was doing a better job with internal policing there wouldn't
>>>>> be
>>>>> as
>>>>> much of a need for third-party intervention, would there?
>>>>> 
>>>>> That, then, becomes part of the  negotiations rather than the subject
>>>>> of
>>>>> flat-out refusal to discuss,
>>>>> 
>>>>> - Evan
>>>>> _______________________________________________
>>>>> Registrants-rights mailing list
>>>>> Registrants-rights at atlarge-lists.icann.org
>>>>> https://atlarge-lists.icann.org/mailman/listinfo/registrants-rights
>>>>> 
>>>>> RAA WG Online: https://st.icann.org/RAA-Policy
>>>> 
>>>> 
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>>>> 
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>>>> 
>>> 
>>> _______________________________________________
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>>> 
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>> 
>> 
> 
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