I find what Timothe is saying in this discussion be be very relevant and
insightful. I agree with his positions, and what we should be asking
ICANN to do on behalf of Registrants.
Kathy
:
>> 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.
>>>>
>>>>
>>>
>
>
|
