-- it doesn't give ICANN unfettered freedom in deciding how to respond in enforcing provisions like 3.18

-- it is completely absurd to suggest that grandfathering the language of existing contracts permits ICANN to enforce any contract term in any way it likes and to claim the protection of the picket fence forever going forward.

-- I cannot imagine how anyone could force ICANN to interpret and enforce 3.18 or any other provision in a manner that doesn't comport with ICANN's mission,

BS   Or do you believe that to the extent ANY enforcement by ICANN of
provisions like 3.18 that touch on illegal activity that implicates
“content†would take such a provisioision outside the
mission?  If it’s the latter, then en it appears you are
attempting to achieve a retrospective amendment of the RA and RAA
­ by redeffining “illegal activityâây†or “activity
contrary to applicable law†to specifically exclude any  activity
which relates to the content associated with the Registered Name. Ă‚
Ă‚

 

DP  Yes, I believe this as well. I thought we had widespread agreement on
that. To the extent enforcement by ICANN of provisions like 3.18
_touch on illegal activity that implicates content_ is outside the
mission. The Proposal clearly says: "ICANN’s Mission does not
include the regulation of services that use the Domain Name System or
the regulation of the content these services carry or provide." If
enforcement of the the provision (again, like the defamation/fraud
examples) touches on "illegal activity that implicates or relates to
_content_, I do not believe that ICANN can impose obligations
(directly or indirectly) on domain name holders with respect to that
content. The RAA ad the RA appear to allow them to do that - which is
why we need to clarify that they're not "grandfathered" in.

MH  I am afraid I must disagree with you here, David.

Merely "touching upon" content is not, in my view, sufficient to place
something outside the scope of ICANN's Mission and it wasn't my intent,
in supporting this text, to make it so.

I certainly wish to prevent ICANN using its authority over domain names
as leverage to enable it to engage in activity whose *purpose* is the
regulation of content, even if the *means* is limited to regulating domain
names. But if the true purpose is an entirely proper regulation of domain
names, then merely "touching upon" content is not sufficient, in my view,
to prevent ICANN from that goal.

Perhaps curiously, I can't think of any better example example to illustrate
this distinction than the discussion we recently had about the UDRP:
in the UDRP, the purpose is to determine whether someone has registered a
domain to which they have no right (or rather, in which someone else's rights
in that domain preempt and preclude them from registering it). So long as
the focus is on answering that question, content on services addressed using
that domain is perfectly admissible and relevant evidence. Selling widgets
marked with a counterfeit "Banana" trademark on www.banana.com is perfectly
good evidence that your registration of banana.com was intended as a misuse
of Banana Corp's trademark and not as a legitimate, lawful use of the string
banana to market fruit. On the other hand, content is only evidence in that
question: illegitimate content cannot of itself give rise to a right to a
third party to supercede the registrant's rights in the domain under the
UDRP, even if it does give rise to remedies against the registrant under local law.

I really do think the respective sides to this debate need to accept the
long-established boundaries to ICANN's role, even if neither are terribly
happy about them. ICANN WILL regulate domain names per se, and its enforcement
mechanisms will make use of relevant evidence to that effect; so sorry, dear
friends in the civil society community, but this is settled. On the other
hand, ICANN CANNOT be authorised to regulate the entire Internet, using the threat of domain
suspension as a cure-all for every supposed evil that people do online: we are
simply not willing to give ICANN such power; that must be reserved for governments
acting within their own jurisdictions (and not collectively, through GAC).

This is the balance. This is the compromise. On this compromise rests not
only support for transition, but support for ICANN itself, and for the
multi-stakeholder model more generally. If ICANN is not able to regulate
the sphere placed within its responsibility, support for ICANN as an effective
means for discharging that responsibility will evaporate, first within the
IPR lobby, then governments, and gradually more generally. But equally, if
ICANN overreaches, and uses its power to implement more general regulation of
what occurs online, then support will evaporate just as fast: first with civil
society, then with other Internet intermediaries like ISPs, and remarkably rapidly with
governments too (when that power is used for a purpose contrary to their own local policy,
as must be inevitable), and then at last with the whole community.

Our job here is to preserve that balance, not to upset it; to ensure that the
enforceable rules we write to uphold that balance are durable, and will ensure
that the line is respected, not just today, but in the face of challenges to come.

I believe our Third Draft Report successfully preserves that balance and, crucially,
provides the means to ensure that the same balance survives in the post-transition
environment. Our lawyers must now implement these measures, and we must then
check that they have done so.

Kind Regards,

Malcolm.

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            Malcolm Hutty | tel: +44 20 7645 3523
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