Hi,

Thanks.

I like the analysis and agree with the conclusions.

avri

On 5 May 2013, at 13:42, Timothe Litt wrote:

>> Basically, if i understand, ICANN can do so because all vendors do so.
> Almost.  All vendors TRY to impose this clause.  The bigger the customer, the more symmetric the relative power, and the more likely the vendor will have to compromise.  The clause would never survive negotiations in, say a line of credit from Megabank to Megacorp, or for Megacorp agreeing to use a business-critical cloud service.
> 
> I suspect that ICANN's attorneys (or perhaps staff who come from a business background) are doing this because they view the relationship between ICANN and the registries as analogous.  And that's what experience trains attorneys to do, and business managers to support.
> 
> This is not black and white.  Both parties have legitimate concerns.  As for us: *We* WANT ICANN to have the ability to impose changes on the registrars when we discover issues mid-contract and persuade ICANN to act.  But we support a process (bottom up consensus, transparency, agreements are stable, staff don't make policy) that's different from what the Verisign letter alleged/exposed.  And we should recognize the legitimate business concerns of the registries (including for predictability) that are causing them to push back.
>> Registries, if they don't sign the RA, are showing us what we could do.
> Regardless of what the registries do, we should be arguing for ICANN to force terms in registrANT agreements that are more reasonable for registrants.  We aren't technically a party to the registry/ICANN agreement - except to the extent that NCSG is a part of ICANN, and therefore ICANN should be representing us.  And what we can get for registrants is limited by what ICANN agrees with the registrars.  So we should be concerned about the indirect effects.  As I previously noted, the "registrant rights and responsibilities" discussion seems like a suitable vehicle for this discussion.
> 
> If we don't succeed in establishing registrant rights, every time we (and the people this group represents) register a domain name, WE are (by default) agreeing to "contracts that allow the other party to unilaterally change the terms."  Without effective notice.  Putting a revised set of terms on a website that we visit only to renew doesn't count.  And as I noted before, they're not even obliged to (and never do) redline differences.  So you have to be very persnickety (obsessive with a lot of free time) to discover what your new obligations are.
> 
> If we do succeed - we will want ICANN to force the registries/registrars to adopt those rights.  So it would be wise not to declare the ICANN position in the registry/ICANN dispute as entirely wrong.  I agree with Verisign that the process they described is not acceptable.  I agree with ICANN that the power to amend the agreement is essential.  I am not informed enough to take a position on whether Verisign's description is accurate, or whether their 'compromise' language is the right balance for our interests.
> 
> I hope this helps.
> 
> I should add the obligatory disclaimer.  I'm not an attorney and this isn't legal advice.  It's my opinion, illuminated by many years of dealing with them on various contractual matters.
> 
> Timothe Litt
> ACM Distinguished Engineer
> --------------------------
> This communication may not represent the ACM or my employer's views,
> if any, on the matters discussed.
> 
> On 05-May-13 12:44, Avri Doria wrote:
>> Thanks so much for pointing this out so clearly.
>> 
>> Basically, if i understand, ICANN can do so because all vendors do so.
>> 
>> Registries, if they don't sign the RA, are showing us what we could do.
>> 
>> avri
>> 
>> On 4 May 2013, at 05:30, Timothe Litt wrote:
>> 
>>>> 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.
>>>> 
>>>> 
>>> 
> 
>