On 7 Jun 2011, at 16:49, <ebw@abenaki.wabanaki.net> <ebw@abenaki.wabanaki.net> wrote:
Michele,
You asked "How is accepting pre-registrations / expressions of interest a matter for Compliance?"
Consult your contract. If it specifically directs Blacknight to pay to ICANN a registration fee for the registration of domains in generic top-level domains that don't exist, then there may not be a compliance issue.
Otherwise, upon what basis is the conduct of offering, whether for a present fee, or for the expectation of fees, direct or consequent, registrations of domains in generic top-level domains that don't exist claimed to be within the scope of which (there are several to choose from) registrar accreditation agreements?
Where this question and answer may go is to an area the Intellectual Property Constituency has raised a significant claim, and some, but not all, of the Registry Consituency members have attempted a defense.
What is, or should be, the liabilities of a party which is aware of systematic misconduct?
The IPC wants to attach liabilities to the registries which are aware of systematic conduct by some registrars. This would not affect registries such as .cat and .coop, but it would affect the CNOBI set, and possibly others.
So what is, or should be, the liabilities of a registrar which systematically registers or "pre-registers" domains which cannot resolve, or which is aware of a reseller which engages in the same conduct?
I've been involved in the registrar constituency from 2003 to 2010, and ran for its chair along with Bhavin (who won) and Jordyn.
There are registrars who's business model was not dependent upon exploiting the Add Grace Period (domain "tasting"), and similar. I do not think the necessary response of any Registrar Accreditation Agreement holder to a proposed limit on permissible conduct must be in the negative. There are registrars for which the weakest interpretation of their contract with the corporation is not the best interpretation, or the sole source of information to their business plan.
Your milage may vary, of course, but just as Jean-Christophe Vignes (then of EuroDNS), Stephane Van Gelder (INDOM), Volker Greimann (Key-Systems) and yourself Michele Neylon, (Blacknight Solutions), argued articulately when advancing the Open Registrar Proposal [1], from the point of view of parties to the European legal tradition, the text of a contract is only a part of the complete agreement between the contracting parties.
This is a cultual difference from the Anglo-American legal tradition, in which any conduct not specifically barred by the contract is permitted, or "anything goes if not specifically prohibited".
I'm puzzled by the change of perspective, but as I mostly engaged with Volker in the VI WG, perhaps his view was not genral to all the advocates of the Open Registrar Proposal. Ireland is not a Civil Law jurisdiction and that may explain a preference for the "what is not prohibited is permitted" construction of a contract.
Eric
[1] The ORP had fewer limits on cross ownership than the RACK+ and JN2 proposals, more limits than the CAM proposal), and central to this issue, increassed support for ICANN's compliance function. Vertical Integration Working Group,
Eric I'm not either agreeing or disagreeing with you, nor have I changed my opinions. I was, however, interested to see why you thought there could be a compliance issue and your explanation is welcome (which is why I'm quoting the entire text above, to keep the context) I personally don't see an issue with a company gathering "expressions of interest" for a service (or product). We've done it in the past and we will do it in the future for a variety of products and services. Calling it a "pre-registration", in my personal view, could be problematic, especially if it is done in such a way that the "registrant" is given the impression that they have done anything more than "express interest". And I can also see how many people would find the use of potentially misleading language to be problematic. Whether that raises it to the level of being a compliance issue or not I'll leave to the lawyers. And in the interests of disclosure, it is for those reasons that you won't see me rushing to throw up a "pre-registration" page on any of our sites for any non-existent domain name extensions any time soon. However you might find us asking people to "express interest" and offer them the opportunity to join a mailing list or similar with information about the upcoming release of a TLD. I don't see that as being problematic for anyone. Regards Michele Mr Michele Neylon Blacknight Solutions Hosting & Colocation, Brand Protection ICANN Accredited Registrar http://www.blacknight.com/ http://blog.blacknight.com/ http://blacknight.mobi/ http://mneylon.tel Intl. +353 (0) 59 9183072 US: 213-233-1612 UK: 0844 484 9361 Direct Dial: +353 (0)59 9183090 Fax. +353 (0) 1 4811 763 ------------------------------- Blacknight Internet Solutions Ltd, Unit 12A,Barrowside Business Park,Sleaty Road,Graiguecullen,Carlow,Ireland Company No.: 370845