[NA-Discuss] Pre-registrations

[ebw at abenaki.wabanaki.net]

Michele,

You asked "How is accepting pre-registrations / expressions of interest
a matter for Compliance?"

Consult your contract. If it specifically directs Blacknight to pay to
ICANN a registration fee for the registration of domains in generic
top-level domains that don't exist, then there may not be a compliance
issue.

Otherwise, upon what basis is the conduct of offering, whether for a present
fee, or for the expectation of fees, direct or consequent, registrations of
domains in generic top-level domains that don't exist claimed to be within
the scope of which (there are several to choose from) registrar accreditation
agreements?

Where this question and answer may go is to an area the Intellectual
Property Constituency has raised a significant claim, and some, but not
all, of the Registry Consituency members have attempted a defense.

What is, or should be, the liabilities of a party which is aware of systematic
misconduct?

The IPC wants to attach liabilities to the registries which are aware of
systematic conduct by some registrars. This would not affect registries
such as .cat and .coop, but it would affect the CNOBI set, and possibly
others.

So what is, or should be, the liabilities of a registrar which systematically
registers or "pre-registers" domains which cannot resolve, or which is aware
of a reseller which engages in the same conduct?

I've been involved in the registrar constituency from 2003 to 2010, and ran
for its chair along with Bhavin (who won) and Jordyn.

There are registrars who's business model was not dependent upon exploiting
the Add Grace Period (domain "tasting"), and similar. I do not think the
necessary response of any Registrar Accreditation Agreement holder to a
proposed limit on permissible conduct must be in the negative. There are
registrars for which the weakest interpretation of their contract with the
corporation is not the best interpretation, or the sole source of information
to their business plan.

Your milage may vary, of course, but just as Jean-Christophe Vignes (then
of EuroDNS), Stephane Van Gelder (INDOM), Volker Greimann (Key-Systems)
and yourself Michele Neylon, (Blacknight Solutions), argued articulately
when advancing the Open Registrar Proposal [1], from the point of view of
parties to the European legal tradition, the text of a contract is only
a part of the complete agreement between the contracting parties.

This is a cultual difference from the Anglo-American legal tradition, in
which any conduct not specifically barred by the contract is permitted, or
"anything goes if not specifically prohibited".

I'm puzzled by the change of perspective, but as I mostly engaged with
Volker in the VI WG, perhaps his view was not genral to all the advocates
of the Open Registrar Proposal. Ireland is not a Civil Law jurisdiction
and that may explain a preference for the "what is not prohibited is
permitted" construction of a contract.

Eric

[1] The ORP had fewer limits on cross ownership than the RACK+ and JN2
proposals, more limits than the CAM proposal), and central to this issue,
increassed support for ICANN's compliance function. Vertical Integration
Working Group,