On 05/04/2013 05:30 PM, 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.

   I agree that company representatives (lawyers, negotiators, and the like)
would always attempt to get the best deal possible for their principals.
That is what they are expected to do. Negotiations would always be
for getting the best deal possible for each party.

   In this case, the clause that ICANN has put in the contract had been
noticed from the very beginning and was told by the other party(ies)
that it is not acceptable.

> 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.

   I am cheering Verisign in this case not because it is Verisign but because
it is against unilateralism in the contract.  Let us set aside the fact
that Verisign has been guilty of unilateralism itself and would gladly accept
a contract where it has a unilateral right to modify an agreement.  The point
is that in this agreement, ICANN is again showing the streak of unilateralism
that we in the NCUC had been against in the past.

   It also appears that the complaints of Verisign are shared by other
registries which include the new gTLDs ("small-not-google-sized" dot
brands, in particular who currently have no power in the negotiation
process).

   I grant you that for certain matters (e.g. registrant rights against 
registries/registrars), that the registries would listen to ICANN more than
to individual registrants.  It is logical for NCUC to side with
ICANN to have the "unilateral right" to amend the contract(s) with the
registries/registrars only if we believe/assume that ICANN will use this
unilateral right to fight for "our rights."  What happens when it
doesn't?

   If this unilateral right to amend the contract had clauses when
it could be exercised, then it would be more palatable.  Something
along the lines of "to protect the rights of registrants", "to
ensure the security and stability of the Internet", and the like
would OK with me.


-- 
Bombim Cadiz
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