The original intent should certainly be documented and considered to see how much of it is still relevant. But the starting point for any proposed changes must be what has been published and relied upon by the entire industry. The internet today is different than it was a few years ago. While I do not doubt the original intent can be accurately captured, I have no idea how much of it is still relevant. Nor do I know the costs required to comply with a policy rewritten to better reflect "original intent". Business decisions, by necessity, must be based on what has been published by ICANN as official policy. I'm sure there are registrars who were involved in the original process, who developed their software based on intent rather than the published policy. However, many registrars were not involved in the original process. They relied on the written concensus policy posted by ICANN. Software has been written and business processes developed based on what was published. To change the current concensus policy without community consultation would therefore be inappropriate. Regards, Tom Barrett EnCirca, Inc -----Original Message----- From: owner-registrars@gnso.icann.org [mailto:owner-registrars@gnso.icann.org] On Behalf Of Ross Rader Sent: Friday, September 28, 2007 5:42 PM To: john@johnberryhill.com Cc: 'elliot noss'; 'Registrars Constituency' Subject: Re: [registrars] FYI re: Transfers John Berryhill wrote:
when the rules were created the MEANINGS were clear.
I promise you that in every contract dispute, both sides are extremely clear on what the contract means. As I mentioned, reasonable minds can differ, and frequently do, in good faith.
Problem is, in this instance, the policy as written, was never intended to become the policy as applied. When the task force was documenting the policy, we were told time and time again not to sweat the legal stuff because it was always the plan to have the ICANN legal staff tighten up the wording during the implementation phase. Louis left right around this time and I suspect that this detail kind of just got dropped on the floor during the transition. I didn't really think twice about it, after all, I was generally happy with the language that was in there and not being a lawyer, wasn't informed enough to be concerned about the vagueness that you correctly point out. Anyways the salient point is - the intent of the policy is extremely clear and is quite well captured by the document. There were some areas that were overlooked, but these can be changed through the PDP. While there might be more than one way to interpret the transfer policy, there was only one intent of the GNSO. Its not like this is the U.S. Constitution and we have to guess at the state of mind of the drafters was. I'm still around, as are the others, you can simply ask. For instance, around expiries, we were very simply giving Louis instructions that Registrars can't deny a domain transfer for a name that has expired, unless the registrant didn't pay for the just-previous registration period for some reason (which is mostly a boundary case - registrations don't make it through an entire year or more without a bill being paid by someone at some point). This is the policy. It is very clear in my mind. What isn't clear were the words that were used to express the policy. Per the original agreement we had with staff, I think its perfectly reasonable for them to clean up the vagueness outside of a PDP or community consultation provided that the changes are consistent with the original policy intent. At the very least, this would be more productive than paying lawyers to talk circles around one another. -- Regards, Ross Rader Director, Retail Services Tucows Inc. http://www.domaindirect.com t. 416.538.5492