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. >>>> >>>> >>> > >