On Feb 20, 2008, at 11:43 AM, Evan Leibovitch wrote:

I would argue, for instance, that domain names should be subject to the same "use it or lose it" regimen as trademarks, for much the same reasons. (IMO, parking does not constitute "use").

I personally own a very small portfolio of names, most of which I have "parked," by some definition of "parked." (see, e.g., http://www.playcamp.com or http://www.sailmodel.com). I don't see how you're going to draw a line between my use and someone else's. Most of the big parking companies do much more sophisticated things with their landing pages, and the technology is improving all the time. At the end of the day, you're not going to be able to articulate a bright-line rule about what is a "use." In fact, five years from now, you won't be able to tell a "parked" page from the sort of portal you see when you go to Yahoo! Bret

Hi Evan I am pretty much with you in this case. Under registrar's hands at least there are contract to work with in case of abuse. Other private companies will be free to do whatever they want in detriment of the public. My suggestion is - if someone has a viable proposal to add to the registrar contracts, post it at public comment to allow the debate. Vanda Scartezini Polo Consultores Associados Alameda Santos 1470 #1407 Tel - +55113266.6253 Mob- +55118181.1464 vanda@uol.com.br P 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-bounces@atlarge-lists.icann.org [mailto:alac-bounces@atlarge-lists.icann.org] Em nome de Evan Leibovitch Enviada em: quarta-feira, 20 de fevereiro de 2008 16:44 Para: Danny Younger Cc: At-Large Worldwide Assunto: Re: [At-Large] Question Hi Danny,

Does the ALAC intend to launch a policy-development process on whether and how to restrict GTLD registries

or registrars or both from engaging in warehousing of and/or speculating in domain names?

http://www.prnewswire.com/cgi-bin/stories.pl?ACCT=104&STORY=/www/story/02-20 -2008/0004758927&EDATE= I am in complete agreement that the warehousing of domain names is an issue of public concern; however I am personally not sure how to adequately address this in a way that actually serves the public good. If a registrar isn't warehousing popular names (or near-misspellings or popular names, etc), then someone else is. From the public POV, I can't see how the "wild west" character of .COM (and possibly other TLDs) would be any better if all these domains were in the hands of a private squatter rather than a registrar. Did the registrar have special access to search domains? Only to the point that it's cheaper for them to register, and they probably developed automated tools before private registrants did. In any case, Tucows has been around this field for a very long time; the size and "quality" of its stable of names owes more to its early involvement than the fact it's a registrar. Would policies that force registrants out of the domain-warehousing business help? Not if the result is simply the sale/auction of domains to warehouses run by non-registrar squatters. The bigger problem of public perception and confidence, at least from my view, is the treatment of domain names as chattel/commodity rather than identification. And simply regulating registry/registrant ownership of domains does not change that. I would argue, for instance, that domain names should be subject to the same "use it or lose it" regimen as trademarks, for much the same reasons. (IMO, parking does not constitute "use"). As a counter-example: When one registers a domain with CIRA (under .ca), there needs to be some kind of demonstrated link between the owner and the requested domain. I'm sure the process isn't perfect, but it demonstrates how, at the registry level, abuses can be minimized through core allocation policy. Thus, the problem is at the registry level with .COM allowing -- indeed encouraging -- a free-for-all. Rather than retroactively trying to fix that, perhaps the answer is to encourage gTLD alternatives that will offer the public greater confidence. One would hope that with a more-open, more competitive approach to gTLDs the world's dependence on .com -- and especially its perception as the 'global default TLD' -- may diminish. That would IMO be the biggest blow to squatters and warehousers -- registrants and otherwise. Having said this, I would welcome any process to produce policy initiatives that might (realistically) improve the status quo -- to advance to the GNSO or anywhere else. If ALAC isn't interested in your offer we can certainly accommodate you within NARALO and advance resulting policy initiatives within ALAC that way. At that point our challenge is finding people who care about the issue, have the time to be well grounded in it, and are articulate enough to advance policy change. Evan Leibovitch Chair, NARALO _______________________________________________ ALAC mailing list ALAC@atlarge-lists.icann.org http://atlarge-lists.icann.org/mailman/listinfo/alac_atlarge-lists.icann.org At-Large Official Site: http://www.alac.icann.org ALAC Independent: http://www.icannalac.org

Wendy and all my friends, Response interspersed below... Wendy Seltzer wrote:

Thanks Evan and Danny,

I think I'd narrow the question: Are parties with privileged access to domain name data using it to the detriment of users/consumers?

Good way to pose the question! Our answer has always been yes, and remains so. Why, one might than ask? Simply put, any "Special Privilege" to access that could possibly be construed or recognized as restraint of trade within legally defined are recognized parameters, is a detriment to users and/or other types of consumers.

Both registries and registrars have access to data that the ordinary person can't get -- registries through traffic to their zonefiles when a name is resolved through the DNS (or not resolved because it doesn't yet exist), registrars through the queries users make in the pre-registration process. We should be concerned if they use this information in an anticompetitive or anti-consumer manner, particularly in the case of registries, because there's no way the market can correct these errors. We can't just choose to use another .com zone.

Very good point!

If we can identify that connection between use of limited-access data or data the user reasonably expects to be kept confidential and resulting consumer or market harm, I'd support requesting a PDP.

Also agreed as long as said requested PDP is open to any and all interested parties and "Rough Consensus" is NOT a determinant aspect... BTW, in our members opinion this problem and/or question should also apply to ccTLD name spaces as well given international trade agreements, ect.

--Wendy

Evan Leibovitch wrote:

...

Hi Danny,

...

Does the ALAC intend to launch a policy-development process on whether and how to restrict GTLD registries or registrars or both from engaging in warehousing of and/or speculating in domain names?

http://www.prnewswire.com/cgi-bin/stories.pl?ACCT=104&STORY=/www/story/02-20...

I am in complete agreement that the warehousing of domain names is an issue of public concern; however I am personally not sure how to adequately address this in a way that actually serves the public good. If a registrar isn't warehousing popular names (or near-misspellings or popular names, etc), then someone else is. From the public POV, I can't see how the "wild west" character of .COM (and possibly other TLDs) would be any better if all these domains were in the hands of a private squatter rather than a registrar.

Did the registrar have special access to search domains? Only to the point that it's cheaper for them to register, and they probably developed automated tools before private registrants did. In any case, Tucows has been around this field for a very long time; the size and "quality" of its stable of names owes more to its early involvement than the fact it's a registrar.

Would policies that force registrants out of the domain-warehousing business help? Not if the result is simply the sale/auction of domains to warehouses run by non-registrar squatters.

The bigger problem of public perception and confidence, at least from my view, is the treatment of domain names as chattel/commodity rather than identification. And simply regulating registry/registrant ownership of domains does not change that. I would argue, for instance, that domain names should be subject to the same "use it or lose it" regimen as trademarks, for much the same reasons. (IMO, parking does not constitute "use").

As a counter-example: When one registers a domain with CIRA (under .ca), there needs to be some kind of demonstrated link between the owner and the requested domain. I'm sure the process isn't perfect, but it demonstrates how, at the registry level, abuses can be minimized through core allocation policy.

Thus, the problem is at the registry level with .COM allowing -- indeed encouraging -- a free-for-all. Rather than retroactively trying to fix that, perhaps the answer is to encourage gTLD alternatives that will offer the public greater confidence. One would hope that with a more-open, more competitive approach to gTLDs the world's dependence on .com -- and especially its perception as the 'global default TLD' -- may diminish. That would IMO be the biggest blow to squatters and warehousers -- registrants and otherwise.

Having said this, I would welcome any process to produce policy initiatives that might (realistically) improve the status quo -- to advance to the GNSO or anywhere else. If ALAC isn't interested in your offer we can certainly accommodate you within NARALO and advance resulting policy initiatives within ALAC that way. At that point our challenge is finding people who care about the issue, have the time to be well grounded in it, and are articulate enough to advance policy change.

Evan Leibovitch Chair, NARALO

-- Wendy Seltzer -- wendy@seltzer.org Visiting Professor, Northeastern University School of Law Fellow, Berkman Center for Internet & Society http://cyber.law.harvard.edu/seltzer.html http://www.chillingeffects.org/ https://www.torproject.org/

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Regards, Spokesman for INEGroup LLA. - (Over 277k members/stakeholders strong!) "Obedience of the law is the greatest freedom" - Abraham Lincoln "Credit should go with the performance of duty and not with what is very often the accident of glory" - Theodore Roosevelt "If the probability be called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i.e., whether B is less than PL." United States v. Carroll Towing (159 F.2d 169 [2d Cir. 1947] =============================================================== Updated 1/26/04 CSO/DIR. Internet Network Eng. SR. Eng. Network data security IDNS. div. of Information Network Eng. INEG. INC. ABA member in good standing member ID 01257402 E-Mail jwkckid1@ix.netcom.com My Phone: 214-244-4827

Tucows has been around this field for a very long time; the size and "quality" of its stable of names owes more to its early involvement than the fact it's a registrar.

Actually, they bought most of the names in 2006 when they acquired Netidentity. I agree that it's pointless to try to forbid registrars from warehousing names, since there's no way to enforce such a rule. I would rather concentrate on consumer related issues like domains used for abusive purposes that have bogus contact into, a serious chronic issue that came up at the MAAWG meeting this afternoon Regards, John Levine, johnl@iecc.com, Primary Perpetrator of "The Internet for Dummies", Information Superhighwayman wanna-be, http://www.johnlevine.com, ex-Mayor "More Wiener schnitzel, please", said Tom, revealingly.

Evan and all my friends, Registrants do not have privacy in respect to reported criminal activity in respect to Whois data now. LEA's have the access they need to pursue those registrants that may be engaged in stalking or any other illegal activity. Hence, you assertion seems to be a matter of either a lack of knowledge and understanding, or an ulterior motive... In fact, registrant privacy is not good enough yet and needs strengthening. We also need to remember that all registrants are users as well... Evan Leibovitch wrote:

John Levine wrote:

...

I agree that it's pointless to try to forbid registrars from warehousing names, since there's no way to enforce such a rule. I would rather concentrate on consumer related issues like domains used for abusive purposes that have bogus contact into, a serious chronic issue that came up at the MAAWG meeting this afternoon

Then... is this a WHOIS issue?

So far, on this issue, we have heard almost exclusively from those who want to emphasize the need for registrant privacy. Perhaps it's time that ALAC, speaking for the Internet-using public, start advocating for some balance between privacy and the need for accountability and accessibility of registrants.

Not every desired contact with a registrant is that of a would-be stalker. It should not be the exclusive realm of IP lawyers or governments to contact (or at least identify) those who are using domains to prey on the public.

- Evan

Regards, Spokesman for INEGroup LLA. - (Over 277k members/stakeholders strong!) "Obedience of the law is the greatest freedom" - Abraham Lincoln "Credit should go with the performance of duty and not with what is very often the accident of glory" - Theodore Roosevelt "If the probability be called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i.e., whether B is less than PL." United States v. Carroll Towing (159 F.2d 169 [2d Cir. 1947] =============================================================== Updated 1/26/04 CSO/DIR. Internet Network Eng. SR. Eng. Network data security IDNS. div. of Information Network Eng. INEG. INC. ABA member in good standing member ID 01257402 E-Mail jwkckid1@ix.netcom.com My Phone: 214-244-4827

John writes that it's pointless to try to forbid registrars from warehousing names, since there's no way to enforce such a rule. I think we have an added problem here that needs to be addressed... recently we were treated to an outstanding example of institutional self-dealing when ICANN (in order to settle a lawsuit and to ensure a major source of funding for itself) increased .com registry pricing. If the board has no apparent problem with self-dealing activities, it will assuredly be a matter of some difficulty to convince a majority of the board to have registrar or registry self-dealing activities curtailed. Is there a way to enforce self-dealing rules? Perhaps... if registry and/or registrar contracts stipulate that self-dealing transactions will result in a loss of accreditation. ...but again, ICANN has long been reluctant to use this option. ICANN takes the view that "For example, if a registrar fails to comply with the requirements of a consensus policy or fails to comply with the RAA requirement to maintain registration data, these are quite serious contract breaches; however, they do not necessarily warrant contract termination." -- http://sanjuan2007.icann.org/files/sanjuan/EnforcementTools.pdf We'll have to take a look at the language in the proposed graduated sanctions amendment to the RAA to see what exactly our options might be. Unfortunately, the specific language of the proposed RAA revisions are not due to be released for comment for another 30-60 days. ____________________________________________________________________________________ Looking for last minute shopping deals? Find them fast with Yahoo! Search. http://tools.search.yahoo.com/newsearch/category.php?category=shopping

Cheryl Langdon-Orr wrote:

My personal response is that ALAC should (based upon public input and list discussion between now and our March 11th Meeting) discuss and decide next steps... Certainly the focus point that Wendy's recent message made "... the question: Are parties with privileged access to domain name data using it to the detriment of users/consumers?..." is an obvious point to work from.

While I appreciate the focus Wendy applied to part of Danny's original issue, I think that the other issue I was trying to identify -- "Is domain commoditization harmful to the public?" -- should not be ignored. It may be a separate issue but it is linked. After all, if domains are not mere commodities, then privileged access to domain data is of significantly reduced value and Wendy's question is moot.

If the NARALO wishes this to be an Agenda Item at our next meeting with your representatives to speak to the matter that would be fine, if not then I will be happy to raise the matter in our next ALAC ExCo meeting (28th or 29th Feb TBC) and for it to enter the ALAC Meeting Agenda that way...

NARALO's next conference call is scheduled March 10, so we may not have something to submit until the day before the ALAC meeting. We'll see if interest exists through email/IM. - Evan

Danny, Cheryl and all, Very much agree with this topic warrenting attention. In fact it is long past . Better late than never I suppose. What Susan neglected to mention is what consideration of those registrants or potential registrants that were unable to register the Domain names of their first choice due to warehousing and how if at all, are they going to be compensated for such intentionally contrived and unwarrented disruption and/or restraint of trade? Second thing Susan neglected to include and/or mention is warehousing is not only a gTLD practice, as such Domain Names in ccTLD's such as .US have a significant record of warehousing practice and should be subject to the same consideration as gTLD's. Danny Younger wrote:

Cheryl,

Thank you for your response. As this issue was considered during the Thursday Delhi Public Forum, I am of the view that this topic warrants attention:

...

...

SUSAN CRAWFORD: Good afternoon. I'm Susan Crawford, a member of the ICANN board. We've had a number of interventions this morning speaking about concerns about front-running, other actions by registries and registrars. The board will be meeting here again tomorrow morning, and one of the items we'll be discussing on our agenda is a proposed resolution suggesting that the GNSO Council consider initiating an issues report, which is the first step in a policy development process, that would be discussing whether it might be appropriate for restrictions to exist on gTLD registries or registrars that relate to -- these are the words and their contract -- that relate to warehousing and speculation in domain names. So that's a subject for the board's discussion tomorrow. This item, warehousing and speculation in domain names, is specifically called out in the contracts that registries and registrars have with ICANN as an appropriate subject for the development of a consensus policy. So the board may be suggesting to the GNSO Council that such a policy process begin. Thank you very much."

For the benefit of the community, it may help those following this discussion to first read the wikipedia entry on domain warehousing -- I have reproduced it below:

"Domain name warehousing is the common practice of registrars obtaining control of domain names with the intent to hold or “warehouse” names for their use and/or profit. Also see domain tasting, a related business practice employed by registrants.

Typically this practice occurs after a domain name has expired and the previous owner (registrant) has not exercised his/her right to renew that name within the allotted time frame (approximately 45 days following expiration). Domain's expiration date and time are easily calculated based off the expiration date in the whois and the redemption process.

According to GNSO Council Deletes Task Force Report (2003), a council organized under the Internet Corporation For Assigned Names and Numbers (ICANN), three specific modes of warehousing were identified:

1. The registrant allows the domain name to lapse, but registrar fails to delete the domain name during the grace period, resulting in a paid renewal to the registry. The registrar subsequently assumes registration of the domain name. 2. The registrant purchases the domain name through fraud and the registrar assumes registration of the name to resell in order to minimize losses. 3. The registrar registers the domain in its own name outright.

When the phrase "Domain Warehousing" was coined in the late 1990s, ICANN registrars were two dimensional entities that served registrants of domain names. The concern at that time was that a registrar would register available domain names and then offer to re-sell those registrations at a "higher than registration" price to potential registrants. By 2006 the name space had clearly matured and the line between registrars, media companies such as AOL.com (who operate ICANN accredited registrars to manage their name portfolios) and large scale commercial registrants (who operate ICANN accredited registrars as security measures) had blurred. It has been hypothesized that by 2010 many large corporations or commercial registrants of domain names will operate an ICANN accredited registrar as a security measure to protect and manage valuable name; and trademark inventory.

The primary concern today when one speaks of Domain Warehousing is that a retail registrar, which has historically focused on serving its individual and small business registrants, will make the domain name renewals process difficult, convoluted or price prohibitive in an effort to unseat exasperated registrants and usurp their registration rights for a profit greater than the potential renewal fee they could earn.

An additional concern is that companies pooling scores of drop registrars for additional registry connections will stand at the expiring domain spigot conducting domain tasting without paying, and then warehouse those which meet traffic criteria while denying the broader community a fair opportunity to compete for those expiring names.

As of this writing the governing body over domain name registration, ICANN, has yet to address those potential inequities. Registrars are in a unique position to impact domain name pricing by introducing competitive bidding or auctions for expired domain names. Circumstances are further impacted when registrars opt not to market the domains in the near terms, thereby excluding the recycling of warehoused names indefinitely."

best regards, Danny

Regards, Spokesman for INEGroup LLA. - (Over 277k members/stakeholders strong!) "Obedience of the law is the greatest freedom" - Abraham Lincoln "Credit should go with the performance of duty and not with what is very often the accident of glory" - Theodore Roosevelt "If the probability be called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i.e., whether B is less than PL." United States v. Carroll Towing (159 F.2d 169 [2d Cir. 1947] =============================================================== Updated 1/26/04 CSO/DIR. Internet Network Eng. SR. Eng. Network data security IDNS. div. of Information Network Eng. INEG. INC. ABA member in good standing member ID 01257402 E-Mail jwkckid1@ix.netcom.com My Phone: 214-244-4827

Danny and all my friends, Yes indeed, this is Drop-Catching which is yet another form of Domain Name Tasting that is aptly named. It needs to stop immediately and registrars are the best suited to stop this errant miscreant practice. Registries would be the second line of correction by deleting these Domains and letting them go to the pool for open registration. Of course this would require oversight at both the Registrar level and Registry level by ICANN or DOC/NTIA directly. Danny Younger wrote:

A concern highlighted in yesterday's post was "that companies pooling scores of drop registrars for additional registry connections will stand at the expiring domain spigot conducting domain tasting without paying, and then warehouse those which meet traffic criteria while denying the broader community a fair opportunity to compete for those expiring names."

This particular concern has been analyzed in the "Drop Catching" study written by FairWinds Partners on behalf of the Coalition Against Domain Name Abuse.

Their recently published study is here: http://www.cadna.org/en/pdf/cadna-white-paper-drop-catching.pdf

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Regards, Spokesman for INEGroup LLA. - (Over 277k members/stakeholders strong!) "Obedience of the law is the greatest freedom" - Abraham Lincoln "Credit should go with the performance of duty and not with what is very often the accident of glory" - Theodore Roosevelt "If the probability be called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i.e., whether B is less than PL." United States v. Carroll Towing (159 F.2d 169 [2d Cir. 1947] =============================================================== Updated 1/26/04 CSO/DIR. Internet Network Eng. SR. Eng. Network data security IDNS. div. of Information Network Eng. INEG. INC. ABA member in good standing member ID 01257402 E-Mail jwkckid1@ix.netcom.com My Phone: 214-244-4827

Certainly... CLO -----Original Message----- From: Danny Younger [mailto:dannyyounger@yahoo.com] Sent: Friday, 22 February 2008 8:45 AM To: cheryl@hovtek.com.au Cc: 'At-Large Worldwide' Subject: IPv4 - IPv6 Cheryl, perhaps you could forward this link to the IPv4-6 Policy Working Group? http://www.nanog.org/mtg-0710/presentations/Bush-v6-op-reality.pdf Thanks, Danny ____________________________________________________________________________ ________ Never miss a thing. Make Yahoo your home page. http://www.yahoo.com/r/hs

Danny and all my friends, I agree that this document should be taken very seriously. I do have a few caviats in which some are already reality and some are much along the lines of what Randy seems to be advocating in IPv6 transitioning. These caviats are as follows: 1.) The IETF is IMO and it seems in Randys opinion as well moving far too slow in application compatability as are software vendors, most especially Microsoft. 2.) NAT's are going to remain in place for a very long time, even if and when IPv6 is largly and/or broadly globally implimented. This would be somewhat in disagreement with Randy. 3.) Government, meaning mostly US government funding for aiding in transitioning to IPv6 is unlikely in the near or mid term simply because there is not the avaliable funding given the current state of US financial condition. 4.) Security issues regarding IPv6 are substancial and significantly not addressed or inadaquately addressed. But they are addressable in fixing those issues in the protocol is the IETF IPv6 wg, which has so far not been the case. 5.) China's IPv9 and already growing IPv8 implimentation and transition is far easier, cheeper, and are far more secure IP protocols in some folks, especially in the far east's, opinion. The one exception is Japan, which as Randy rightly indicates, has adopted IPv6. Danny Younger wrote:

Cheryl,

perhaps you could forward this link to the IPv4-6 Policy Working Group?

http://www.nanog.org/mtg-0710/presentations/Bush-v6-op-reality.pdf

Thanks, Danny

Regards, Spokesman for INEGroup LLA. - (Over 277k members/stakeholders strong!) "Obedience of the law is the greatest freedom" - Abraham Lincoln "Credit should go with the performance of duty and not with what is very often the accident of glory" - Theodore Roosevelt "If the probability be called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i.e., whether B is less than PL." United States v. Carroll Towing (159 F.2d 169 [2d Cir. 1947] =============================================================== Updated 1/26/04 CSO/DIR. Internet Network Eng. SR. Eng. Network data security IDNS. div. of Information Network Eng. INEG. INC. ABA member in good standing member ID 01257402 E-Mail jwkckid1@ix.netcom.com My Phone: 214-244-4827