Doubtful any registry operator is going to give up their precious presumptive renewal voluntarily, without huge compensation. At some point in the future, a court might find it's anti-competitive, and fix ICANN's mistake. But, the US government hasn't shown inclination to bring such an action to date. Perhaps one day someone will step up and bring a civil action.... Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Wed, May 1, 2019 at 5:18 PM Jonathan Zuck <JZuck@innovatorsnetwork.org> wrote:
I might be wrong about this then. Thanks for the citations George. I've known there was a presumption for renewal but believed there was an out for ICANN in extreme circumstances. Perhaps we need to add language to that part of the contract while we can.
Jonathan Zuck Executive Director Innovators Network Foundation www.Innovatorsnetwork.org
________________________________ From: GTLD-WG <gtld-wg-bounces@atlarge-lists.icann.org> on behalf of George Kirikos <icann@leap.com> Sent: Wednesday, May 1, 2019 12:33:37 PM To: CPWG Cc: Alan Greenberg Subject: Re: [GTLD-WG] [CPWG] [registration-issues-wg] Further Revised Draft Statement on .ORG Renewal
Hi folks,
Jonathan's statement that "ICANN is under no obligation to renew" is not supported by any citation, not supported by history, and not correct, as one can easily check by reading the draft contract itself:
https://www.icann.org/sites/default/files/tlds/org/org-proposed-renewal-18ma...
"4.2 Renewal. (a) This Agreement will be renewed for successive periods of ten (10) years upon the expiration of the initial Term set forth in Section 4.1 and each successive Term, unless:..."
(list circumstances not at ICANN's discretion, e.g. if Registry operator breaches and doesn't cure that breach, etc.)
Which part of "will be renewed" isn't clear?
Section 4.3 talks about termination, and again it's not at ICANN's discretion.
Combine the above with Section 5.4, which ensures "specific performance" of the contract, and it's clear that ICANN is under an obligation to renew:
"5.4 Specific Performance. Registry Operator and ICANN agree that irreparable damage could occur if any of the provisions of this Agreement was not performed in accordance with its specific terms. Accordingly, the parties agree that they each shall be entitled to seek from the arbitrator or court of competent jurisdiction specific performance of the terms of this Agreement (in addition to any other remedy to which each party is entitled)."
One need only look at the market cap of Verisign. It wouldn't be so high if it was reflecting just a 6 year or 10 year contract term. That presumptive renewal was a major policy blunder by ICANN, as I noted in my own public comments.
https://mm.icann.org/pipermail/comments-org-renewal-18mar19/2019q2/003178.ht...
If ICANN wasn't under any obligation to renew, certainly it would have held competitive tenders by now, which they've never done since entering into these types of contracts.
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/
On Wed, May 1, 2019 at 4:49 AM Jonathan Zuck <JZuck@innovatorsnetwork.org> wrote:
All,
I am attaching another, further revised draft public comment on the .ORG renewal, after sifting through the various recent conversations on the list. I will try to circulate a redline in the morning, New York time, but can't right now.
I thought about including something on UA, but for .ORG and in the absence of proposed language, I did not see the obvious hook in this statement to bring that concept in.
Best regards,
Greg
Greg Shatan greg@isoc-ny.org President, ISOC-NY "The Internet is for everyone" _______________________________________________ CPWG mailing list CPWG@icann.org https://mm.icann.org/mailman/listinfo/cpwg
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