> It is unimaginable for a party to sign a contract which allows the
> other party to unilaterally change the terms of the contract.
One might think so. One might even wish it were so. But it happens
every day. You probably clicked-through such language many times when
signing-up for on-line services. Attorneys automatically include these
provisions in every draft and try to minimize what they give up in
negotiations when they are noticed - when they have to negotiate.
Your credit card agreement includes such language. So do the terms and
conditions of on-line retailers, ISPs - and yes, registries - virtually
every persistent consumer agreement in the US. Quite frequently, they
don't even bother to give you notice of changes - "you must keep
checking the website for changes to these terms and are deemed to have
consented if you keep using the service after we post the change."
Unless some consumer protection law requires proactive notice. Usually
the only recourse is 'if you disagree, you can stop using the ' (card,
service, website).
Of course, this is always asymmetric. The party with power 'must have
the flexibility to deal with unexpected circumstances' and can't be
bothered to deal with each individual consumer. But 'my employer went
out of business so I need to reschedule payments until I get a new job'
isn't in the agreement because consumers have no leverage.
From the point of view of the provider, this is actually quite
understandable. Just imagine a bank having to negotiate a new -
potentially different - signed agreement with every card-holder every
time the interest rate changed. Or a registrar having to negotiate with
every domain name holder when a new abuse scheme is developed... A
provider can't afford to deal with each consumer - at the prices we
demand for services.
This isn't to say that providers are necessarily evil. We generally
rely on their being reasonable in how they apply their power. Of course
absolute power does tend to corrupt, absolutely.
When the power is more equal - e.g. two equally-sized corporations - the
attorneys will try for mutual written notice, provide a formal change
procedure, try to anticipate contingencies - in short, treat each-other
with some respect.
I'm not defending the practice - I think there needs to be a reasonable
compromise between consumer protection and what's practical for
providers. In part that means that groups like ours need to aggregate
the voices of constituents in these agreements. See my recent comments
on proactive notice to end-users in the discussion about registrant
rights and responsibilities...
Cheer Verisign on if you like - the drafting process as presented in
that letter seems reprehensible. But it is worth noting that if
Verisign and the registrars win this battle, the benefit will not filter
down to your agreement with them. Verisign will still put 'we can
unilaterally change this agreement' in the end-user agreement for your
domain name, and the use of their website. And they won't even notice
the inconsistency - unless we say something.
Timothe Litt
ACM Distinguished Engineer
--------------------------
This communication may not represent the ACM or my employer's views,
if any, on the matters discussed.
On 04-May-13 00:00, Horacio T. Cadiz wrote:
> On 05/04/2013 05:10 AM, Robin Gross wrote:
>> Powerful comments from Chuck Gomes & Verisign about the proposed
>> Registry Agreement and ICANN's lack of good faith in the negotiation
>> process:
>> http://forum.icann.org/lists/comments-base-agreement-29apr13/msg00002.html
>
> It is unimaginable for a party to sign a contract which allows the
> other party to unilaterally change the terms of the contract. Then again,
> as Gomes pointed out, ICANN is on top of a pile of money (USD 350m)
> and can afford to wait the applicants out.
>
>
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