Mike R: Procedurally I agree it is best not to have unilateral statements from elected representatives or a small subset of the constituency without properly vetting this issue within the constituency. I believe this is the same point that George was articulating in connection with the funding of Philip's travel request on behalf of the BC. I personally believe that there are a number of important issues in this working group that do impact businesses, and as a member of the working group I will be trying to articulate them in the public session scheduled for Seoul. Therefore I believe labeling this issue a "low priority" is dangerous as it might prejudice the advocacy of individual business constituency members on this issue. Therefore I would respectfully submit that a more accurate statement is that the BC constituency did not have time to submit a response within the allotted public comment period, but will continue to monitor the activities of the Working Group for its potential impact on business users. I am just concerned that your "low priority" statement as an elected BC representative may be used out of context by some working groups members. Hopefully you could agree with my friendly amended to your previous email statement? Michael P P.S. Tough Chargers loss this past weekend, no miracle finish like last week :-) -----Original Message----- From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Mike Rodenbaugh Sent: Monday, September 21, 2009 1:29 PM To: 'Mike O'Connor'; 'BC gnso' Subject: RE: [bc-gnso] PEDNAR (post expiration domain name recovery) PDP needs a constituency statement from us Thanks Mikey. Comments are now past due. I asked this same question a few weeks ago and have not had any response from the small BC team or the broader membership. Accordingly, I consider this issue a low priority for the BC. Since nobody is volunteering to draft comments, the BC will not be in position to provide any at this time. -Mike Mike Rodenbaugh Rodenbaugh Law 548 Market Street San Francisco, CA 94104 +1.415.738.8087 www.rodenbaugh.com -----Original Message----- From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Mike O'Connor Sent: Monday, September 21, 2009 5:25 AM To: BC gnso Subject: [bc-gnso] PEDNAR (post expiration domain name recovery) PDP needs a constituency statement from us hi gang, i'm not paying a lot of attention to matters related to ICANN at the moment, but i'm on the PEDNAR working group and constituency statements are due soon. i'm forwarding the one from the Registrar Constituency for you information. i can't draft one for us to review -- i'm completely buried under another project for the next month. does somebody want to take the lead on getting this organized? mikey

Philip: Where to begin. First, I have been advocating the all registrants, both businesses and individuals, require openness, transparency and predictability in connection what will happened to their domain name once it expires. Most in the group have not opposed this fundamental principle. Hopefully you would agree with this statement. Now the Expired Domain Deletion Policy (EDDP) requires registrars to post on their website the actual fees charged to registered name holders for recovering domain names that are in RGP. Where you aware that ICANN's compliance team conducted an audit and found that only around 500 out of approximately 900 plus registrars where in compliance, see http://forum.icann.org/lists/gnso-pednr-dt/msg00136.html. Therefore, yes I stand by my original statement that there are potential impacts on business users. Second, please turn to Kristina Rosette's email to the Pendr comment forum, see http://forum.icann.org/lists/pednr-wg-questions/msg00007.html. In this email Kristina discusses how she sent a cease and desist letter to a registrant in connection with a domain name involving a trademark dispute. In response to this letter the registrant cancelled the name, now this action logically should have resulted in the name being cancelled at the registry thus starting the expiry/recovery period. But guess what, the name was removed from the registrant's account, but the registrar maintained the domain name in a different account but never bothered to change the underlying whois thus frustrating both the trademark owner, their legal counsel and the registrant. Therefor I continue to stand by my original statement that certain registrar practices impeded openness, transparency, and predictability in the name space to the detriment of registrants both businesses and individuals, particularly when these divergent practices also involves false and inaccurate whois data. Third, the current apparent practice of registrars involving expired domain name appears to directly and materially impact business, more specifically trademark owners in connection with enforcing their rights. When a name is deleted from the registry and re-registered the create date is reset. I do not have to explain to you the importance of the create date in connection with a trademark owner's ability to prevail under the UDRP. However, it appears that the current practice is for an expired domain name to be transferred to a third party post expiration. This means that the creation dates stays the same. Therefore a trademark owners ability to prove rights prior to registration of the domain name are frustrated when the creation is never reset when the domain name is transferred to third parties post expiration. In fact this practice may have also frustrated Google's original intention in becoming an ICANN accredited registrar see, http://domainnamewire.com/2006/12/15/google-offers-domains-from-godaddy-enom / Fourth, in this article to the Pendr mailing list I discuss a number of recent article that I found of relevant to the Working Group, see http://forum.icann.org/lists/gnso-pednr-dt/msg00163.html. The second article discusses potential Registrar immunity under EU law. Considering that a number of BC members have sued registrars, how this potential immunity/safe harbor precedent evolves is I believe relevant to the BC members. Fifth, my research revealed that there are divergent billing practices that various registries use in connection with expiring domain names. The particular practice of each registry is dependent upon their backend infrastructure provider. See this post where I discuss the potential for these divergent practices to lead to unpredictable results to registrants in connection with expired domain names, see http://forum.icann.org/lists/gnso-pednr-dt/msg00077.html Given the potential for an unlimited number of new gTLD as ICANN is proposing I think this is something that merited further consideration. While those registrars on the Working Group state that they have only a single renewal/expiration practice, staff will be interviewing a select cross section of registrars to determine if this is true. I could continue, but I have some billable work to do. So yes I stand by my original statement, and if you and the rest of the elected BC reps believe that this is truly a non-issue I would respectfully ask that you respond to the points I raised above. Best regards, Michael -----Original Message----- From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Philip Sheppard Sent: Tuesday, September 22, 2009 3:29 AM To: 'BC gnso' Subject: [bc-gnso] PEDNAR (post expiration domain name recovery) PDP needs a constituency statement from us Mike (Palage), I find your statement that some BC members may find this issue of importance somewhat speculative. We first made the request to the BC for comments and to the small BC TF to write a statement on August 21 with a reminder on September 10. It met with silence. What evidence is there for your belief ? The only accurate statement at this time is - no comment. I would be delighted to see a BC member making an intelligent reasoned statement. Alas, no one has. Philip

Philip/Mike R, In the interest of preserving the BC position on this topic, I can also report that the registry constituency will be submitting a comment after the close of the formal comment period. Therefore, if we did submit a late response we would not be alone. I would like to submit the following statement for consideration to the group, friendly amendments welcomed. While the Business Constituency supports competition and innovation within the marketplace, these principles should not compromise the rights of registrants with regard to open, transparent and predicable practices concerning expiring domain names. The Business Constituency would like to thank ICANN staff for their support of the PEDNR Working Group to date. Two staff members that have provided critical support to date are Marika Konings, who will be overseeing a registrar survey to provide a more accurate picture of the expiring domain name market and William McKelligott, an Auditor from the ICANN Contractual Compliance Team, for his work in accessing registrar compliance with regard to the Expired Domain Deletion Policy (EDDP). While the BC will await these survey results and other additional fact finding prior to formulating a more detailed position statement, there is one important point that the BC would like to make at this time in connection with the accuracy of Whois data. The BC has long advocated in support of increased accuracy of whois data. The preliminary work of the Work Group appears to indicate that registrar practices in connection with the transfer of domain names post expiration may result in inaccurate whois data that may materially impact a trademark owners right to enforce their rights through the UDRP. The BC apologizes for the untimely submission of this comment, but its members and leadership look forward to meaningfully participating in the upcoming forum at the ICANN annual meeting in Seoul. Best regards, Michael -----Original Message----- From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Philip Sheppard Sent: Tuesday, September 22, 2009 8:41 AM To: 'BC gnso' Subject: RE: [bc-gnso] PEDNAR (post expiration domain name recovery) PDP needs a constituency statement from us Michael, you are I agree. I believe it IS an issue but regret the inaction to date by other BC members. Why could you not have spent the time writing your last e-mail by drafting a BC position? Philip

just a process update, we're just wrapping up the PEDNAR call right now and it looks like only 2 constituencies got statements in on time. so we all have a 2-week "dog ate the homework" extension. Berry Cobb is pulling together a call among the BC members on the PEDNAR working group (Berry, Mike, Phil Corwin, me) to hammer on this and figure out a process to get something by you for review. Palage is off to a great start with this post. mikey On Sep 22, 2009, at 2:52 PM, Michael D. Palage wrote:

Philip/Mike R,

In the interest of preserving the BC position on this topic, I can also report that the registry constituency will be submitting a comment after the close of the formal comment period. Therefore, if we did submit a late response we would not be alone.

I would like to submit the following statement for consideration to the group, friendly amendments welcomed.

While the Business Constituency supports competition and innovation within the marketplace, these principles should not compromise the rights of registrants with regard to open, transparent and predicable practices concerning expiring domain names. The Business Constituency would like to thank ICANN staff for their support of the PEDNR Working Group to date. Two staff members that have provided critical support to date are Marika Konings, who will be overseeing a registrar survey to provide a more accurate picture of the expiring domain name market and William McKelligott, an Auditor from the ICANN Contractual Compliance Team, for his work in accessing registrar compliance with regard to the Expired Domain Deletion Policy (EDDP).

While the BC will await these survey results and other additional fact finding prior to formulating a more detailed position statement, there is one important point that the BC would like to make at this time in connection with the accuracy of Whois data. The BC has long advocated in support of increased accuracy of whois data. The preliminary work of the Work Group appears to indicate that registrar practices in connection with the transfer of domain names post expiration may result in inaccurate whois data that may materially impact a trademark owners right to enforce their rights through the UDRP.

The BC apologizes for the untimely submission of this comment, but its members and leadership look forward to meaningfully participating in the upcoming forum at the ICANN annual meeting in Seoul.

Best regards,

Michael

-----Original Message----- From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Philip Sheppard Sent: Tuesday, September 22, 2009 8:41 AM To: 'BC gnso' Subject: RE: [bc-gnso] PEDNAR (post expiration domain name recovery) PDP needs a constituency statement from us

Michael, you are I agree. I believe it IS an issue but regret the inaction to date by other BC members.

Why could you not have spent the time writing your last e-mail by drafting a BC position?

Philip

- - - - - - - - - phone 651-647-6109 fax 866-280-2356 web www.haven2.com handle OConnorStP (ID for public places like Twitter, Facebook, Google, etc.)

Thanks to both Mikes for their efforts on this. Fine with me if the BC reasserts our concern with inaccurate WHOIS, even if the comments are late. Late comments are frequently put in. But really, I do not see much impact possible with that comment in this Working Group at all. If somebody comes up with better comments, I would prefer to post something more substantive and relevant to the WG questions. Mike Palage made several other good points in his earlier post, that we might all gel around. Mike Rodenbaugh RODENBAUGH LAW 548 Market Street San Francisco, CA 94104 (415) 738-8087 http://rodenbaugh.com -----Original Message----- From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Mike O'Connor Sent: Tuesday, September 22, 2009 1:03 PM To: Michael D. Palage Cc: 'BC gnso' Subject: Re: [bc-gnso] PEDNAR (post expiration domain name recovery) PDP needs a constituency statement from us just a process update, we're just wrapping up the PEDNAR call right now and it looks like only 2 constituencies got statements in on time. so we all have a 2-week "dog ate the homework" extension. Berry Cobb is pulling together a call among the BC members on the PEDNAR working group (Berry, Mike, Phil Corwin, me) to hammer on this and figure out a process to get something by you for review. Palage is off to a great start with this post. mikey On Sep 22, 2009, at 2:52 PM, Michael D. Palage wrote:

Philip/Mike R,

In the interest of preserving the BC position on this topic, I can also report that the registry constituency will be submitting a comment after the close of the formal comment period. Therefore, if we did submit a late response we would not be alone.

I would like to submit the following statement for consideration to the group, friendly amendments welcomed.

While the Business Constituency supports competition and innovation within the marketplace, these principles should not compromise the rights of registrants with regard to open, transparent and predicable practices concerning expiring domain names. The Business Constituency would like to thank ICANN staff for their support of the PEDNR Working Group to date. Two staff members that have provided critical support to date are Marika Konings, who will be overseeing a registrar survey to provide a more accurate picture of the expiring domain name market and William McKelligott, an Auditor from the ICANN Contractual Compliance Team, for his work in accessing registrar compliance with regard to the Expired Domain Deletion Policy (EDDP).

While the BC will await these survey results and other additional fact finding prior to formulating a more detailed position statement, there is one important point that the BC would like to make at this time in connection with the accuracy of Whois data. The BC has long advocated in support of increased accuracy of whois data. The preliminary work of the Work Group appears to indicate that registrar practices in connection with the transfer of domain names post expiration may result in inaccurate whois data that may materially impact a trademark owners right to enforce their rights through the UDRP.

The BC apologizes for the untimely submission of this comment, but its members and leadership look forward to meaningfully participating in the upcoming forum at the ICANN annual meeting in Seoul.

Best regards,

Michael

-----Original Message----- From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Philip Sheppard Sent: Tuesday, September 22, 2009 8:41 AM To: 'BC gnso' Subject: RE: [bc-gnso] PEDNAR (post expiration domain name recovery) PDP needs a constituency statement from us

Michael, you are I agree. I believe it IS an issue but regret the inaction to date by other BC members.

Why could you not have spent the time writing your last e-mail by drafting a BC position?

Philip

- - - - - - - - - phone 651-647-6109 fax 866-280-2356 web www.haven2.com handle OConnorStP (ID for public places like Twitter, Facebook, Google, etc.)

I agree there is some import to business, so I have been lurking on the WG list. But nobody has volunteered to lead for BC... Palage's comments could easily be turned into draft BC comments, but not by me. Until someone steps up, this will be low priority for the Officers. Mike Rodenbaugh Rodenbaugh Law -----Original Message----- From: "Michael D. Palage" <michael@palage.com> Date: Tue, 22 Sep 2009 08:33:21 To: 'Philip Sheppard'<philip.sheppard@aim.be>; 'BC gnso'<bc-gnso@icann.org> Subject: RE: [bc-gnso] PEDNAR (post expiration domain name recovery) PDP needs a constituency statement from us Philip: Where to begin. First, I have been advocating the all registrants, both businesses and individuals, require openness, transparency and predictability in connection what will happened to their domain name once it expires. Most in the group have not opposed this fundamental principle. Hopefully you would agree with this statement. Now the Expired Domain Deletion Policy (EDDP) requires registrars to post on their website the actual fees charged to registered name holders for recovering domain names that are in RGP. Where you aware that ICANN's compliance team conducted an audit and found that only around 500 out of approximately 900 plus registrars where in compliance, see http://forum.icann.org/lists/gnso-pednr-dt/msg00136.html. Therefore, yes I stand by my original statement that there are potential impacts on business users. Second, please turn to Kristina Rosette's email to the Pendr comment forum, see http://forum.icann.org/lists/pednr-wg-questions/msg00007.html. In this email Kristina discusses how she sent a cease and desist letter to a registrant in connection with a domain name involving a trademark dispute. In response to this letter the registrant cancelled the name, now this action logically should have resulted in the name being cancelled at the registry thus starting the expiry/recovery period. But guess what, the name was removed from the registrant's account, but the registrar maintained the domain name in a different account but never bothered to change the underlying whois thus frustrating both the trademark owner, their legal counsel and the registrant. Therefor I continue to stand by my original statement that certain registrar practices impeded openness, transparency, and predictability in the name space to the detriment of registrants both businesses and individuals, particularly when these divergent practices also involves false and inaccurate whois data. Third, the current apparent practice of registrars involving expired domain name appears to directly and materially impact business, more specifically trademark owners in connection with enforcing their rights. When a name is deleted from the registry and re-registered the create date is reset. I do not have to explain to you the importance of the create date in connection with a trademark owner's ability to prevail under the UDRP. However, it appears that the current practice is for an expired domain name to be transferred to a third party post expiration. This means that the creation dates stays the same. Therefore a trademark owners ability to prove rights prior to registration of the domain name are frustrated when the creation is never reset when the domain name is transferred to third parties post expiration. In fact this practice may have also frustrated Google's original intention in becoming an ICANN accredited registrar see, http://domainnamewire.com/2006/12/15/google-offers-domains-from-godaddy-enom / Fourth, in this article to the Pendr mailing list I discuss a number of recent article that I found of relevant to the Working Group, see http://forum.icann.org/lists/gnso-pednr-dt/msg00163.html. The second article discusses potential Registrar immunity under EU law. Considering that a number of BC members have sued registrars, how this potential immunity/safe harbor precedent evolves is I believe relevant to the BC members. Fifth, my research revealed that there are divergent billing practices that various registries use in connection with expiring domain names. The particular practice of each registry is dependent upon their backend infrastructure provider. See this post where I discuss the potential for these divergent practices to lead to unpredictable results to registrants in connection with expired domain names, see http://forum.icann.org/lists/gnso-pednr-dt/msg00077.html Given the potential for an unlimited number of new gTLD as ICANN is proposing I think this is something that merited further consideration. While those registrars on the Working Group state that they have only a single renewal/expiration practice, staff will be interviewing a select cross section of registrars to determine if this is true. I could continue, but I have some billable work to do. So yes I stand by my original statement, and if you and the rest of the elected BC reps believe that this is truly a non-issue I would respectfully ask that you respond to the points I raised above. Best regards, Michael -----Original Message----- From: owner-bc-gnso@icann.org [mailto:owner-bc-gnso@icann.org] On Behalf Of Philip Sheppard Sent: Tuesday, September 22, 2009 3:29 AM To: 'BC gnso' Subject: [bc-gnso] PEDNAR (post expiration domain name recovery) PDP needs a constituency statement from us Mike (Palage), I find your statement that some BC members may find this issue of importance somewhat speculative. We first made the request to the BC for comments and to the small BC TF to write a statement on August 21 with a reminder on September 10. It met with silence. What evidence is there for your belief ? The only accurate statement at this time is - no comment. I would be delighted to see a BC member making an intelligent reasoned statement. Alas, no one has. Philip

That link doesn't work; this one should --- http://www.icann.org/correspondence/dengate-thrush-to-karklins-22sep09-en.pd... Philip S. Corwin Partner Butera & Andrews 1301 Pennsylvania Ave., NW Suite 500 Washington, DC 20004 202-347-6875 (office) 202-347-6876 (fax) 202-255-6172 (cell) "Luck is the residue of design." -- Branch Rickey ________________________________________ From: owner-bc-gnso@icann.org [owner-bc-gnso@icann.org] On Behalf Of Michael D. Palage [michael@palage.com] Sent: Wednesday, September 23, 2009 1:57 AM To: 'BC List' Subject: [bc-gnso] ICANN Response to the GAC's DAG v2 Comments Hello All, This 24 page response to the GAC is worth a read, see http://www.icann.org/correspondence/dengate-thrush-to-karklins-22sep09-en.pd f Best regards, Michael