[At-Large] Fwd: Re: Follow-up on an enquiry during Durban Public Forum

[Christian de Larrinaga]

Karl

A very interesting idea. Any chance of At Large requiring ICANN to fund
legal opinions and any best practice strategies in place for users to
 
"obtain powers to enforce and compel the obligations of that contract
upon the direct parties. "

both in US and other key jurisdictions for gTLDs

One off the top observation is that this might also imply that such
contracts need to be visible to users i.e., open and not subject to NDAs
etc.

Christian

> Karl Auerbach <mailto:karl at cavebear.com>
> 10 November 2013 15:27
>
> It is long past time, indeed it is decades past time, that the
> contractual tree that underlies ICANN's regulatory structure ought to
> recognize and declare that the ultimate purpose of that structure is to
> benefit those who register and those who use domain names.
>
> ICANN's focus is on the structure of registries and registrars. An
> inquiring outsider could understandably reach the conclusion that in
> ICANN's systems registrants and users are not of particular value or
> concern.
>
> There is much talk about registrants and domain name users, but it is
> talk - it is vapor blowing in a light breeze. It is pleasant to see but
> lacking in substance.
>
> What is long overdue is the recognition - legally enforceable
> recognition - that this system is for the benefit of domain name
> registrants and those on the net who use domain names.
>
> In the law of contracts there is a principle of law known as Third Party
> Beneficiary Rights. This is a means through which third parties, who
> are not themselves direct parties to a contractual relationship can
> obtain powers to enforce and compel the obligations of that contract
> upon the direct parties.
>
> It is time to clearly recognize and specifically declare that ICANN's
> web of contracts imbues domain name registrants and domain name users
> with defined third party beneficiary rights that they may enforce upon
> registrars and registries, and upon ICANN itself, even in the absence of
> ICANN's participation, even in the absence of ICANN's consent.
>
> --karl--
>
>
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> Olivier MJ Crepin-Leblond <mailto:ocl at gih.com>
> 10 November 2013 09:15
> Dear all,
>
> please be so kind to find the answer below, to the question which Evan
> had asked at the public forum in Durban.
> The question was: "why is Section 9 of the RAA entitled 'Registrant
> Benefits and Responsibilities' ?"
> Kind regards,
>
> Olivier MJ Crépin-Leblond
> ALAC Chair
>
>
> -------- Original Message --------
> Subject: Re: Follow-up on an enquiry during Durban Public Forum
> Date: Wed, 30 Oct 2013 12:46:34 -0700
> From: Samantha Eisner <Samantha.Eisner at icann.org>
> To: Evan Leibovitch <evan at telly.org>, Olivier MJ Crepin-Leblond
> <ocl at gih.com>
> CC: Fadi Chehade <fadi.chehade at icann.org>, John Jeffrey
> <john.jeffrey at icann.org>, Cyrus Namazi <cyrus.namazi at icann.org>, ICANN
> At-Large Staff <staff at atlarge.icann.org>, Cassia Oliveira
> <cassia.oliveira at icann.org>
>
>
>
> Dear Olivier and Evan,
>
> In response to your query below, during the course of the 2013 RAA
> negotiations, it became clear that the negotiating teams and the community
> had different understandings of what purpose the document formerly
> referred to as "Registrant Rights and Responsibilities" was intended to
> serve. While the negotiating teams from ICANN and the Registrars agreed
> that this document would be a compilation only of obligations clearly
> found in the contract, the community input at public sessions on this
> topic, as well as in the public comment forum, suggested that the
> "Registrant Rights and Responsibilities" document should serve a broader
> scope, encompassing issues such as external legal rights relating to
> privacy and intellectual property.
>
> As explained in the summary of public comments on a proposed final version
> of the RAA, "For the Registrant Rights and Responsibilities document,
> there were two versions of a new document posted by commenters as
> alternatives to the version posted for comment. The current Registrant
> Rights and Responsibilities document, as posted with the agreement, was
> not mean to be a full statement of all registrant rights and
> responsibilities arising out of being a domain name registrant. Rather, it
> is specifically targeted to identify contractual rights and
> responsibilities that are stated within the RAA, as opposed to looking to
> consensus policy or to broader principles of privacy rights. While the
> suggestions raised in the versions presented during the comment period
> incorporate some ideas that could be of great value for the community to
> discuss, they are not geared to the limited purpose of the document. To
> help clarify the purpose of the document, ICANN will be considering
> clarifying the title of the document prior to finalizing the RAA."
> http://www.icann.org/en/news/public-comment/report-comments-proposed-raa-21
> jun13-en.pdf.
>
> The term "benefits" was agreed upon by ICANN and the Registrars
> Negotiating Team to achieve two purposes - first, to clarify the purpose
> of the document so that it was not seen a broad, sweeping statement of
> registrant rights, as commenters clearly identified. Second, the use of
> the term "benefits" helps denote a balance between the listing of key
> contractual responsibilities to which registrants are bound, and the
> positive things that the registrants are provided under the agreement,
> such as access to information. There is no explicit legal meaning that we
> were trying to afford to the word "benefit", instead the focus was on
> removing the confusion inherent in the continued use of the term "rights"
> where not all applicable rights were enumerated.
>
> Best,
>
> Samantha
>