Re: [CCWG-ACCT] Board comments on the Mission statement
Bradley I'm a little confused by your suggestion that some of us are trying to push an existing provision of the RAA out of scope; that seems to me exactly what you're doing. You read 3.7.7.9's reference to "the manner in which the Registered name is directly or indirectly used" to cover "infringing uses on the website to which the domain points." So if I'm violating the rights of some third party by the manner in which I operate my website, you regard that as a "use" of the name. In fact, you say "If that's not at least an 'indirect' use, I don't know what is." The current proposal language says "ICANN shall not impose regulations on services (i.e., any software process that accepts connections from the Internet) that use the Internets unique identifiers" It seems to me that under your interpretation, this clause must mean that 3.7.7.9 is out of scope, no? if operation of my website is a "use of the domain name," this says that ICANN can't impose any regulation on that operation - doesn't it? David At 10:51 AM 11/23/2015, Silver, Bradley wrote:
David,
Thatâs an overly narrow reading of RAA 3.7.7.9  - its not only that the registration of the Registered Name infringes or its âdirect useâ, but also that the manner in which is indirectly is used. I canât see how the âindirectâ use of the domain cannot also be attributed to infringing uses on the website to which the domain points.  If thatâs not at least an âindirectâ use, I donât know what is.   While I agree with your conclusion, I donât agree with the reasoning, and I expect there are others (like Milton) who would like to see the clear meaning of the language of 3.7.7.9 changed through the application of the âno regulationâ sentence.Â
Bradley
From: David Post [mailto:david.g.post@gmail.com] Sent: Monday, November 23, 2015 10:37 AM To: Burr, Becky Cc: Alan Greenberg; Silver, Bradley; Greg Shatan; Mueller, Milton L; Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement
At 10:03 AM 11/23/2015, Burr, Becky wrote:
Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence?
No, I don't think this was out of scope, because it concerns the "registration" of the name and the manner in which THE NAME is used. 3.7.7.9 does not say, in my opnion, that the registrant has to promise that it is not doing anything at a website that is infringing; the promise is that the name is not being used in an infringing manner.
D
At 10:03 AM 11/23/2015, Burr, Becky wrote:
Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence?
Section 3.7.7.9 of the RAA has been in place from the beginning of time. Here is the language from the 2001 RAA: 3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party. Here it is in the 1999 RAA: 7. g. The SLD holder shall represent that, to the best of the SLD holder's knowledge and belief, neither the registration of the SLD name nor the manner in which it is directly or indirectly used infringes the legal rights of a third party.
As someone who was part of the team drafting and negotiating the 1999 RAA, I can assure you that the inclusion of this requirement in the RAA was intended to be within the scope of ICANNâs Mission.
J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / <http://www.neustar.biz>neustar.biz
From: Alan Greenberg <<mailto:alan.greenberg@mcgill.ca>alan.greenberg@mcgill.ca > Date: Sunday, November 22, 2015 at 10:06 PM To: "Silver, Bradley" <<mailto:Bradley.Silver@timewarner.com> Bradley.Silver@timewarner.com>, Greg Shatan <<mailto:gregshatanipc@gmail.com>gregshatanipc@gmail.com
, "Mueller, Milton L" <<mailto:milton@gatech.edu>milton@gatech.edu> Cc: Accountability Community <<mailto:accountability-cross-community@icann.org> accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Board comments on the Mission statement
I rarely fill people's mailboxes just to do this, but in this case;
+1
Alan
At 22/11/2015 08:31 PM, Silver, Bradley wrote:
I want to echo and support Gregâs resposposponse below. Miltonâs position that an en existinting provision of the RAA is out of the scope of ICANNâââ¢s mission is illuminating. sp; I had been operating on the (hopeful) presumption that what we were attempting to do was find a way to describe ICANNâs missionion in a manner that refleflects its current activities, and avoid drafting anything that could adversely impact its continued ability to do so while clearly preventing any undue expansion. If those who support the language in the second sentence are seeking a way to attack the validity or enforceability of existing contractual provisions, then the concerns of the board are not only well founded, they are grossly understated.
From: <mailto:accountability-cross-community-bounces@icann.org>accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Greg Shatan Sent: Sunday, November 22, 2015 3:01 AM To: Mueller, Milton L Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Board comments on the Mission statement
Milton,
I strongly disagree that 3.7.7 is out of scope of ICANN's mission. I also don't think it's useless, nor is it an uncommon provision in many terms of service and similar agreements. 3.7.7 only asks for the registrant's "knowledge and belief" -- so they are not required to know whether they are infringing anywhere under any jurisdiction. They are only required to make reference to what they already know -- an entirely reasonable and ordinary requirement.
Is it your intent that the new provision we are discussing places 3.7.7 out of scope, and thus serves as a basis for an IRP or other challenge seeking to nullify 3.7.7? Since 3.7.7 is only an "example," what other sections are you trying to place out of scope?
Thanks.
Greg
On Sat, Nov 21, 2015 at 5:56 PM, Mueller, Milton L <<mailto:milton@gatech.edu>milton@gatech.edu> wrote:
-----Original Message-----
See section 3.7.7 of the registrar accreditation agreement (RAA):
3.7.7.9 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which
it is directly or indirectly used
infringes the legal rights of any third party.
Bruce: this is a good example of how the RAA is currently out of scope. To begin with, it is a completely useless element of the RAA. This statement does not stop anyone from doing anything, and it does not require ICANN to determine whether a registrant is infringing someone's rights. And how is anyone supposed to know whether the way they use a domain infringes the legal rights of a third party - anywhere in the world, under any jurisdiction? They cannot know this until and unless someone asserts those rights against them in a legal system which has jurisdiction and can make a legal determination. Or do we want ICANN to be making this determination? Most would agree that we do not. So what is the purpose, other than to invite ICANN to impose controls or regulations on virtually anything that happens on the internet?
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David Post