---------- Forwarded message ---------- From: Alan Greenberg <alan.greenberg@mcgill.ca> Date: Wed, Dec 31, 2008 at 4:14 PM Subject: Re: [ALAC-Internal] RES: IMPORTANT Note re RAA Package NEW post briefingVote which is now running... To: ALAC Internal List <alac-internal@atlarge-lists.icann.org> I do have a comment or two on Carlton's note, but first, I once again request that we only use the Internal list when privacy is truly an issue. I understand why Cheryl's original note perhaps should not have been public, but I am not as sure with the follow-ons (although one should never copy something that was sent on the internal list without agreement of all authors). I agree with much of what Carlton says. One can always fight a battle in court and perhaps win. And it would be unrealistic that the Registrar constituency would "negotiate" terms which were felt to be disadvantageous to some of its members. Certainly, our briefing and any understanding of how contracts are negotiated tells us that both registrars and ICANN likely accepted some terms that were not optimal from teach point of view, but were granted in exchange for other terms that were wanted more. I also agree that if I were the supreme being, I might have written the original contract differently. But since I am not, there seem to be several paths forward. And in my mind, ALL should be followed in parallel. 1. Whatever terms we can get all parties to agree to that generally help registrants, we should implement. In my mind, the current RAA package meets that description. 2. Changes that we want that can reasonable be construed as consensus policy, we should work to see realized. This does not require the agreement of registrars if enough other support is gathered (and yes, I understand that it is possible that some of these terms could be fought, but it is the best too we have). 3. Changes that are likely to require unilateral action by ICANN should be drafted and approved by the Board, and then used in future Registrar contracts as they come up for renewal. Alan At 31/12/2008 01:50 PM, Carlton Samuels wrote:

Jeez, how's this for consideration. If you have to *call and remind* ALAC members to vote on a matter the entire ALAC has declared to be important and which has been circulated too many times out of memory, then I submit we have a larger problem. It just seems awry, not to mention grossly unfair, to ask some members, all of whom are volunteers, to work so hard while others are hardly working! With regard to the RAA, the ALAC has made several submissions, some of which repeat language I have used in my own postings on the matter. Notwithstanding, I will reiterate my perspective. Context is the key here. In the context of ICANN and the Registry/Registrar constituency relationship, I take the position that those who pay the piper will call the tune. The language of extant RAA Subsections 4.3 and 5.4 are the key parts that peak my interests. The ICANN Board Resolution 07.51 directs staff to engage the Registrar constituency on the proposals for modifying the RAA. It reads in part "a set of proposed amendments or alternative version to the RAA, that is intended to address *to the extent feasible* the concerns raised by the Internet community." The *emphases* are mine. Following on these elements, anyone who takes a balanced comparative view of the extant and proposed RAA revisions will not fail to note the tilt towards the registrar/registry constituency. I do not believe this is causal rather than casual but entirely understandable. Having had some experience with commercial contracts of different kinds, I'm minded to think a more purposeful form of the RAA could be devised. However it will come into being from the weight of time, clear-eyed business drivers from competition and registrants willing to shop around. In the current setup, sanctions for violations are weak to non-existent and enforcement is spotty, at best. The amended agreement has some sanctions. But it is laced with language so "weaselly" that any lawyer with a fair knowledge of the tort law or uniform commercial code could argue it away. You just need to look back at the initial At-Large response at LA to see that some of us have been onto that for some time. I agree that there are some provisions in the proposed amended RAA that are now explicit in their intent to protect registrants. However, we know that ICANN does not now have an enforcement operation worth its name, in-house or externally. If memory serves, my concern with the ALAC-commisisoned Issues Report on contract enforcement and the conundrum of contract grace periods pertinent to the domain tasting phenomenon was part and parcel of the main issue. This aside, I have diligently combed the operational reports to see if there are enforcement operations in place or planned here forward without success. I remain willing to be educated but until such time, I shall remain a skeptic and mark this one advantage to the registrar/registry constituency. Like any other commercial contract, what one set of lawyers form/generate/devise, an opposing set can and will always see gaps/opportunities to delay/undermine/exploit in the name of competitive advantage. Sometimes they use the tort law. And since ICANN is configured as a California corporation with its contract adjudication under California and/or US law, then there are lots of fungible opportunities for the RAA via the tort law. The point I'm making is the At-Large needs to recognize the limits of influence and decide when to hold.......and when to fold. Here's the other thing concerning RAA subsection 4.3 and 5.4. I am fairly certain that I can recognize "gobbledygook" when I read it. Hell, I myself have contributed my fair share of such "language" to a few contracts, some of which remain in active use today. Every reasonable interpretation of these clauses I see tends to suggest that they preserve an "opt out" for registrars/registries. In other words, some are "grandfathered" and cannot be forced to comply with these amendments or other such clauses they deem inoperative. Or, they cannot be compelled to enforce this or other requirement down the line. Now, let us supposed I was a member of this constituency and, given perfect alignment of all the stars, become aggrieved of an enforcement action. I could see a petition and claim in federal court for equal protection of the laws and iniquitous enforcement as a rational outcome. Because I know that my chance of relief in law and equity would be awfully good. To me, the central issue has always been enforcement. And I see nothing that would make me think or believe it is going to be better this time around than under the existing agreement. Felicitations and Every Good Wish to All for 2009. Carlton On Tue, Dec 30, 2008 at 10:31 PM, Cheryl Langdon-Orr <langdonorr@gmail.com>wrote: > Hi Vanda > > I cannot tell you who has voted yet in the second Poll Staff will be back > online on January 5th so we can ask them then... and follow up with anyone > who needs further reminding... > > And thanks for the very timely Spanish Translation of the New gTLD > discussion points paper, as it needs urgent attention by LACRALO in the new > year... and echoing Vanda's good wishes to you all => Happy New {2009}Year > to all those working within the constraints of the Gregorian Calendar :-) > > > CLO > > 2008/12/31 Vanda Scartezini UOL < vanda@uol.com.br> > > > Hi Cheryl > > Who did not vote yet? We can make a campaign calling regionally. > > Happy new year with lots of health and joy to you and all you love! ( > > amazingly I am still working with the investors today - but the deal is > > almost done and I hope I will enter 2009 with a new and better share > > composition in my company.!!) > > I sent to Carlton the Spanish translation last week. > > Lots of kisses > > >

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Vanda Scartezini > > Polo Consultores Associados > > Alameda Santos 1470 #1407 > > Tel - +55113266.6253 > > Mob- +55118181.1464 > > vanda@uol.com.br > > ï Before print think about the Environment > > "The information contained in this message - and attached files - is > > restricted, and its confidentiality protected by law. If you are not the > > intended recipient, please delete this message and notify the sender > > immediately. Please be advised that the improper use of the > aforementioned information will create grounds for legal action." > > > > "As informações existentes nesta mensagem e nos arquivos anexados são > para uso restrito, com sigilo protegido por lei. Caso não seja o destinatário, > > favor apagar esta mensagem e notificar o remetente. O uso impróprio das > > informações desta mensagem será tratado conforme a legislação em vigor." > > > > > > > > -----Mensagem original----- > > De: alac-internal-bounces@atlarge-lists.icann.org [mailto: > > alac-internal-bounces@atlarge-lists.icann.org] Em nome de Cheryl > > Langdon-Orr > > Enviada em: terça-feira, 30 de dezembro de 2008 00:56 > > Para: ALAC Internal List > > Assunto: [ALAC-Internal] IMPORTANT Note re RAA Package NEW post > > briefingVote which is now running... > > > > On Dec 24th staff sent the message inserted below re the Post Briefing > > Vote on the RAA Package... > > > > I just wanted to point out to all ALAC Members how important it is that > you > > all Vote on this matter befreo January 8th and particularly those who > voted > > No in the first vote until the briefing was held and who did NOT attend > the > > briefing outlined below, that in this briefing and teleconference meeting > > (please review the source material listed below) it was agreed that *the > > best way forward and outcomes for At-Large* for the second vote would be > > to > > VOTE FOR option 1. "Recommend the GNSO to accept the current RAA > package, > > with the > > possibility of further policy development in the future." by those on the > > call and of particular note, Danny Younger, who is someone who I consider > > most expert in the matters of RAA, and who had particular concerns about > > the > > package that needed to be discussed / addressed... > > > > This new vote will have its details publicised after completion, and I'm > > happy (as one of those who voted to hold off until after the briefing was > > held) to register with all other voters that I agreed with the consensus > > outcome of the members at the briefing and have voted accordingly as > > follows > > :- > > > > >vote receipt number is: 8dikub4XiU > > >You voted for the following: > > >* 1) Recommend the GNSO to accept the current RAA package, with the > > possibility of further policy >development in the future (ID#15111151) > > > > Thus finally endorsing the views of those at the briefing and indeed the > > outcomes of our earlier discussions on the matter in Cairo... > > > > I trust that the rest of the ALAC who have yet to vote will :- > > 1. VOTE before 08 January 2009 at 1200 UTC > > 2. Review their previous voting preferences. > > 3.Consider the recommendations of those attending the briefing and take > the > > time to review the recorded material and notes as they consider their > vote > > on this matter... > > 4. Support the recommendation by voting FOR option 1 as I have done. > > > > CLO > > > > > > >Dear ALAC members, > > > > A briefing was recently held on the RAA Package by Tim Cole and Kurt > Pritz > > from ICANN staff. You can find the audio recording and summary minutes of > > this briefing under: > > https://st.icann.org/alac/index.cgi?discussion_on_the_raa > > > > Following this briefing, it was decided to start a second online vote on > > the > > ALAC recommendation to the GNSO on the RAA Package. The new vote will be > > open until 08 January 2009 at 1200 UTC, which will allow the ALAC GNSO > > Liaison to announce the result at the GSNO Council meeting scheduled > later > > that day. > > > > You will be asked to choose among the following options: > > > > 1. Recommend the GNSO to accept the current RAA package, with the > > possibility of further policy development in the future. > > 2. Recommend that the GNSO do not approve the current RAA package. > > 3. Abstain > > > > > > > > Earlier Vote on RAA Package resulted in the following:- > > ---------- Forwarded message ---------- > > From: At-Large Staff <staff@atlarge.icann.org> > > Date: 2008/12/24 > > Subject: [ALAC-Announce] Results of the first vote on the RAA Package > > To: " alac-announce@atlarge-lists.icann.org" < > > alac-announce@atlarge-lists.icann.org> > > > > > > Dear all, > > > > With 10 out of 15 ALAC Members having voted in the recent vote on the > ALAC > > recommendation to the GNSO on the vote on the RAA Package, we can confirm > that the vote is quorate: > > > > Number of voters: 10 · Group size: 15 · Percentage voted: 66.67 > > > > ³ICANN staff has told the GNSO that the only way that the current RAA > > package of amendments can be approved is if they pass a super-majority > > (66%) > > vote accepting the package. If it is not approved, any future policy > > development must be done over using current PDP processes. Some of the > > issues covered by the package, such as enforcement and accreditation are > > not > > likely to be considered in scope for a PDP. Please choose one of the > > following options:² > > > > 70.00% 1 ) Recommend that the GNSO defer the decision until such time > > that > > the ALAC can be properly briefed on the current position by ICANN staff. > > ( J Ovidio Salgueiro, P Vande Walle, S Bachollet, R Guerra, F Seye Sylla, > > TH > > Nguyen, C Langdon-Orr) > > > > 20.00% 2 ) Recommend the GNSO to accept the current RAA package, with > the possibility of further policy development in the future. > > (A Greenberg, A Peake) > > > > 10.00% 3) Recommend that the GNSO do not approve the current RAA > package. > > (B Brendler) > > > > 0.00% 4) Abstain 0 0.00 > > > > You may verify the results independently under: > > https://www.bigpulse.com/pollresults?code=w6iazAxzpvfT4cqTQkbc > > > > > > -- > > Cheryl Langdon-Orr > > (CLO) > > _______________________________________________ > > ALAC-Internal mailing list > > ALAC-Internal@atlarge-lists.icann.org > > > > > http://atlarge-lists.icann.org/mailman/listinfo/alac-internal_atlarge-lists.... > > > > ALAC Wiki: http://st.icann.org/alac > > At-Large <http://st.icann.org/alacAt-Large> Website: > > http://atlarge.icann.org > > > > > > _______________________________________________ > > ALAC-Internal mailing list > > ALAC-Internal@atlarge-lists.icann.org > > > > > http://atlarge-lists.icann.org/mailman/listinfo/alac-internal_atlarge-lists.... > > > > ALAC Wiki: http://st.icann.org/alac > > At-Large <http://st.icann.org/alacAt-Large> Website: > > http://atlarge.icann.org > > > > > > -- > Cheryl Langdon-Orr (CLO) > _______________________________________________ > ALAC-Internal mailing list > ALAC-Internal@atlarge-lists.icann.org > > http://atlarge-lists.icann.org/mailman/listinfo/alac-internal_atlarge-lists.... > > ALAC Wiki: http://st.icann.org/alac > At-Large <http://st.icann.org/alacAt-Large> Website: > http://atlarge.icann.org > _______________________________________________ ALAC-Internal mailing list ALAC-Internal@atlarge-lists.icann.org http://atlarge-lists.icann.org/mailman/listinfo/alac-internal_atlarge-lists.... 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_______________________________________________ ALAC-Internal mailing list ALAC-Internal@atlarge-lists.icann.org http://atlarge-lists.icann.org/mailman/listinfo/alac-internal_atlarge-lists.... ALAC Wiki: http://st.icann.org/alac At-Large Website: http://atlarge.icann.org