David, The line you are drawing is not accurate and does not reflect current reality or past practice. You are trying to move a line, not "preserve" it. Your interpretation of what it means for a domain name to be "directly or indirectly used" flies in the face of the UDRP, among other things. It is clear that the manner in which a domain is used must look at the website associated with that domain name. Indeed the UDRP is set up so that the registration alone, without use, is generally insufficient to bring a UDRP case If you are going to try and rewrite and re-interpret 3.7.7.9 to fit your narrow definition of scope, that is completely outside what we can or should be doing in this group. Greg On Mon, Nov 23, 2015 at 11:04 AM, David Post <david.g.post@gmail.com> wrote:

At 10:42 AM 11/23/2015, Greg Shatan wrote:

Clearly, this shows that this is an attempt to rewrite ICANN's mission, rather than an attempt to avoid mission creep. Just like 3.7.7.9 has been with us since the beginning of (ICANN) time, the policy disputes that underlie this attempt have been with us since the beginning of (ICANN) time. The Accountability effort is an inappropriate place to try and score points in these disputes. Â It's both good and unfortunate that this is becoming clear -- good that it is becoming clear, unfortunate because of the timing.

I (strongly) disagree. I think that it's quite critical that we try to articulate why things like 3.7.7.9 are IN SCOPE, so that we allow ICANN to continue to do those things BUT ONLY those things.

3.7.7.9 concerns the registration and use of names.

"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 ..."

The "it" is important. When I registered davidpost.com, I did NOT make a promise to the registry, at ICANN's behest, that I would not do anything at the website I operate at that address that "infringes the legal rights of any third party." I might defraud buyers, or defame my political opponents, or infringe someone's copyright - none of which is of ICANN's concern.

What I did promise was that my use of the davidpost.com name would not infringe the rights of any third party - that the name "davidpost.com," for instance, does not infringe someone's trademark or copyright rights.

This is precisely the line we're trying to preserve. ICANN CAN regulate the names (i.e. what strings can be used as names, who gets which names) - of course, only with policies "developed through a bottom-up, consensus-based multi-stakeholder process" - but NOT what people do with the names.

David

Greg

On Mon, Nov 23, 2015 at 10:03 AM, Burr, Becky <Becky.Burr@neustar.biz > 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 ICANN’s 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 / neustar.biz <http://www.neustar.biz> From: Alan Greenberg <alan.greenberg@mcgill.ca > Date: Sunday, November 22, 2015 at 10:06 PM To: "Silver, Bradley" < Bradley.Silver@timewarner.com>, Greg Shatan <gregshatanipc@gmail.com >, "Mueller, Milton L" < milton@gatech.edu> Cc: Accountability Community < 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 Gregâ€ââ„¢s response below. Milton’s position thathat an existing provision of the RAA is out of the scope of ICANN’s mission is illuminating. I had been operating on the (hhopeful) presumption that what we were attempting to do was find a way to describe ICANN’s mission in a manner that reflects its current activitieties, 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: accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <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 <milton@gatech.edu> wrote:

...

-----Original Message----- > > See section 3.7.7 of the registrar accreditation agreement (RAA): > https://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources...> > 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?

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community  ================================================================= Reminder: Any email that requests your login credentials or that asks you to click on a link could be a phishing attack. If you have any questions regarding the authenticity of this email or its sender, please contact the IT Service Desk at 212.484.6000 or via email at ITServices@timewarner.com

================================================================= ================================================================= This message is the property of Time Warner Inc. and is intended only for the use of the addressee(s) and may be legally privileged and/or confidential. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, he or she is hereby notified that any dissemination, distribution, printing, forwarding, or any method of copying of this information, and/or the taking of any action in reliance on the information herein is strictly prohibited except by the intended recipient or those to whom he or she intentionally distributes this message. If you have received this communication in error, please immediately notify the sender, and delete the original message and any copies from your computer or storage system. Thank you. ================================================================= _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n <http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0> music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com

*******************************