ICANN might not be a party to the contract between a domain name holder and a registrar but it is acting as an ultimate enforcer of the UDRP decisions. This is rather concerning considering the power and control it gives ICANN as well as the fact that it re-enforces the ever-worrying aspect of ICANN's engagement in policy making.



Konstantinos



Dr. Konstantinos Komaitis



Lecturer in IT&T Law, Panellist,

Chair Membership Committee,

Global Internet Governance Academic Network,

University of Strathclyde,

The Law School,

141 St James Road, 

Glasgow G4 0LT.

 

tel:+44 (0)141 548 4306

fax:+44 (0)141 548 3639

email: [log in to unmask]



> -----Original Message-----

> From: Non-Commercial User Constituency [mailto:[log in to unmask]] On

> Behalf Of Cheryl Preston

> Sent: 30 May 2008 20:13

> To: [log in to unmask]

> Subject: Re: Fwd: [council] Fwd: Charter for Fast Flux PDP WG

> 

> OK, let me clarify.  I agree ICANN is responsible for the security of

> the DNS.  In that capacity, it has always been concerned with who gets

> access to the system, how and when.  The ICANN contract imposes a

> surprising number of conditions on the granting of domain names.  One of

> the provisions in the contract with registries requires the registry to

> include it its contracts with registrars certain terms and to insist

> that all registrars it deals with include certain provisions in the

> contracts the registrars enter with customers.

> 

> For instance:

> ICANN requires that all accredited registrars incorporate the UDRP by

> reference into all registration agreements with domain name holders.

> The UDRP was established by ICANN and has been adopted by all accredited

> domain name registrars of all gTLDs,  and a few domain name registrars

> of country-code top-level domains (ccTLDs).  The UDRP provides that a

> registrar will cancel, transfer, or make other changes to domain name

> registrations upon receipt of a court order. The relevant provision

> provides:

> 

> "3. Cancellations, Transfers, and Changes. We will cancel, transfer or

> otherwise make changes to domain name registrations under the following

> circumstances:

> . . . .

> b. our receipt of an order from a court or arbitral tribunal, in each

> case of competent jurisdiction, requiring such action; and/or

> c. our receipt of a decision of an Administrative Panel requiring such

> action in any administrative proceeding to which you were a party and

> which was conducted under this Policy or a later version of this Policy

> adopted by ICANN. . . . "

> 

> The policy is incorporated by reference into the registration agreement

> between a registrar and a domain name holder.  In other words, “we”

> in the quote above refers to the registrar and “you” refers to the

> domain name holder. ICANN is not a party to this contract.

> 

> 

> Cheryl B. Preston

> Edwin M. Thomas

> Professor of Law

> J. Reuben Clark Law School

> Brigham Young University

> 424 JRCB

> Provo, UT 84602

> (801) 422-2312

> [log in to unmask]

> 

> >>> Milton L Mueller <[log in to unmask]> 5/30/2008 12:48 pm >>>

> > -----Original Message-----

> > From: Non-Commercial User Constituency

> > Also, you state that this is out of ICANN's scope.  Since

> > ICANN controls the granting of granting of domain names and

> > is responsible for the security of the Internet, why wouldn't

> 

> Whoa. ICANN does not control the granting of all domain names, it

> coordinates the assignment of top level domains and the management of

> the root zone file. As an extension of that power, it imposes some

> contractual obligations on domain name registries. But not on hosting

> services per se.

> 

> Also, to say that ICANN is "responsible for the security of the

> Internet" is a vast overstatement. It is responsible for the security

> of

> DNS. That's all.