RE: [registrars] FYI re: Transfers

[Tim Ruiz <tim@xxxxxxxxxxx>]

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

Some registrars point out the fact that the expiration date 
during the Renewal Grace Period is advanced one year at the
registry. As a result, the above applies. We do not approach
it that way, but it is hard to argue with anyone who does.


Tim 


-------- Original Message --------
Subject: RE: [registrars] FYI re: Transfers
From: "John Berryhill" <john@xxxxxxxxxxxxxxxxx>
Date: Wed, September 26, 2007 5:28 pm
To: "'elliot noss'" <enoss@xxxxxxxxxx>
Cc: "'Registrars Constituency'" <registrars@xxxxxxxxxxxxxx>




>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.