RE: [registrars] FYI re: Transfers

["John Berryhill" <john@xxxxxxxxxxxxxxxxx>]

>are you saying here that in your view the two behaviors referenced in the
>ICANN advisory, namely i) denying transfers in the grace period and ii)
>denying transfers for any change in whois information, are allowed for in
>the current policy? or are you saying they should be?

To be clear, I am not purporting to interpret the various relevant contracts
for another party.  The policy is open to interpretation in both instances.

(i)  Transfer during auto-renew:

Looking at the denial prohibition post-expiration, I have already discussed
the inherent problems with the wording here:

*  Nonpayment for a pending or future registration period


However, the policy further clarifies:

"Hence, in the event of a dispute over payment, the Registrar of Record must
not employ transfer processes as a mechanism to secure payment for services
from a Registered Name Holder. Exceptions to this requirement are as
follows:

    (i) In the case of non-payment for previous registration period(s) if
the transfer is requested after the expiration date, or

    (ii) In the case of non-payment of the current registration period, if
transfer is requested before the expiration date."

Both of these can be read to say that a Registrar may deny a transfer during
the auto-renew grace period if that transfer is requested after the
expiration date.  

But the larger issue here is the continual dodging of who is the "Registered
Name Holder" after expiration of a domain name. 

(ii)  Transfer within 60 days of registrant change

This part is absolutely less ambiguous:

"8 A domain name is in the first 60 days of an initial registration period.

9 A domain name is within 60 days (or a lesser period to be determined)
after being transferred (apart from being transferred back to the original
Registrar in cases where both Registrars so agree and/or where a decision in
the dispute resolution process so directs)."

Let's look at 8.  What is "an initial registration period"?  If you
registered a domain name 6 months ago, sold me the domain name last week,
when did my "initial registration period" begin?  

You are interpreting 8 to refer to the registry creation date for the domain
name, but you are not explaining why that is the only way to read paragraph
8.  One way to tell what things say is to consider what they DON'T say.
Paragraph 8 refers to "an" initial registration period, which implies that a
domain name may have more than one "initial registration period", because it
sure as heck doesn't say "THE" initial registration period.  

Then we have paragraph 9.  It states that a registrar transfer may be denied
within sixty days "after being transferred".  It does not say "after being
transferred from another registrar".  It is unconditional as to what sort of
"transferred" is being referenced, and it parenthetically refers to an
exception to the exception involving a particular registrar transfer
scenario.


Now, Elliot, I am absolutely certain that the things I have mentioned are
capable of other interpretations, and I will admit to writing this in a
rush.  What I would suggest to you that the issue here is not which
interpretation is "correct".  I am also not suggesting that any possible
interpretation is in any sense more reasonable than any other
interpretation. The ONLY mechanism for determining the "correct"
interpretation of ambiguous contract terms is through litigating them.  But
it is important not to confuse an interpretation of a policy with some
notion of what the policy IS - particularly where you have policies that
conflict with each other in interesting ways.  I do not believe that you
would agree that ICANN is the last word on contract interpretation.

Now, concerning being strip-searched whilst shopping, as flattered as I may
be that a discussion between us conjures up this image in your mind, I would
point out that when one walks into a retail establishment, a number of
policies are generally posted in a conspicuous place, and relate to things
like bag inspection.  Where one has consented to a policy that is not
unreasonable, parties should be free to contract for services.