RE: [registrars] FYI re: Transfers

["Thomas Barrett - EnCirca" <tbarrett@xxxxxxxxxxx>]

The original intent should certainly be documented and considered to see how
much of it is still relevant.  But the starting point for any proposed
changes must be what has been published and relied upon by the entire
industry.

The internet today is different than it was a few years ago.  While I do not
doubt the original intent can be accurately captured, I have no idea how
much of it is still relevant.  Nor do I know the costs required to comply
with a policy rewritten to better reflect "original intent".

Business decisions, by necessity, must be based on what has been published
by ICANN as official policy.

I'm sure there are registrars who were involved in the original process, who
developed their software based on intent rather than the published policy.
However, many registrars were not involved in the original process.  They
relied on the written concensus policy posted by ICANN.  Software has been
written and business processes developed based on what was published.

To change the current concensus policy without community consultation would
therefore be inappropriate.

Regards,

Tom Barrett
EnCirca, Inc


-----Original Message-----
From: owner-registrars@xxxxxxxxxxxxxx
[mailto:owner-registrars@xxxxxxxxxxxxxx] On Behalf Of Ross Rader
Sent: Friday, September 28, 2007 5:42 PM
To: john@xxxxxxxxxxxxxxxxx
Cc: 'elliot noss'; 'Registrars Constituency'
Subject: Re: [registrars] FYI re: Transfers


John Berryhill wrote:

>> when the rules were created the
>> MEANINGS were clear.
> 
> I promise you that in every contract dispute, both sides are extremely 
> clear on what the contract means.  As I mentioned, reasonable minds 
> can differ, and frequently do, in good faith.

Problem is, in this instance, the policy as written, was never intended to
become the policy as applied.

When the task force was documenting the policy, we were told time and time
again not to sweat the legal stuff because it was always the plan to have
the ICANN legal staff tighten up the wording during the implementation
phase. Louis left right around this time and I suspect that this detail kind
of just got dropped on the floor during the transition. I didn't really
think twice about it, after all, I was generally happy with the language
that was in there and not being a lawyer, wasn't informed enough to be
concerned about the vagueness that you correctly point out.

Anyways the salient point is - the intent of the policy is extremely clear
and is quite well captured by the document. There were some areas that were
overlooked, but these can be changed through the PDP. While there might be
more than one way to interpret the transfer policy, there was only one
intent of the GNSO. Its not like this is the U.S. 
Constitution and we have to guess at the state of mind of the drafters was.
I'm still around, as are the others, you can simply ask.

For instance, around expiries, we were very simply giving Louis instructions
that Registrars can't deny a domain transfer for a name that has expired,
unless the registrant didn't pay for the just-previous registration period
for some reason (which is mostly a boundary case - registrations don't make
it through an entire year or more without a bill being paid by someone at
some point).

This is the policy. It is very clear in my mind. What isn't clear were the
words that were used to express the policy. Per the original agreement we
had with staff, I think its perfectly reasonable for them to clean up the
vagueness outside of a PDP or community consultation provided that the
changes are consistent with the original policy intent. At the very least,
this would be more productive than paying lawyers to talk circles around one
another.

--
Regards,

Ross Rader
Director, Retail Services
Tucows Inc.

http://www.domaindirect.com
t. 416.538.5492