RE: [registrars] FYI re: Transfers

["John Berryhill" <john@xxxxxxxxxxxxxxxxx>]

>john, with respect, this is nonsense. 

Well, I'm glad it was with respect.  I'd be curious to know what it was
without respect, but I believe it would involve a lot of arm waving and rich
baritone vocalizations in either event.

>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.

>the  
>FAQ on the ICANN site references this specifically!

And the RAA states, specifically:

"6. Entire Agreement. Except for any written transition agreement that may
be executed concurrently herewith by both parties, this Agreement
constitutes the entire agreement of the parties hereto pertaining to the
subject matter hereof and supersedes all prior agreements, understandings,
negotiations and discussions, whether oral or written, of the parties."

Once a negotiation is concluded, then lawyers put these "integration
clauses" into contracts to make it clear that subjective "meaning" external
to the words of the document itself does not control.  

There is also a transfer dispute policy to address these issues.  If it is
not effective, then perhaps it should be re-visited.

>the meaning was clear when the policy was enacted and we had clear  
>abuse of the policy, followed by a long period of non-enforcement and  
>NOW an ex poste facto legalistic rationalization.

There were specific egregious problems which have been effectively addressed
by the policy.  However, taking the RAA and the transfer policy as a whole,
there are ambiguities which...

>it is also just flat wrong to say the only way to interpret is to  
>litigate. as I imagine you know, the most common method of resolving  
>statutory ambiguity is to issue interpretations. the next most common  
>is to pass regulations. ICANN is not a legislature. issuing  
>interpretations is not only completely appropriate, to take any other  
>path ("let's leave it to the courts to interpret") would be both  
>wrong in spirit and have the effect of slowing any kind of effective  
>policy-making to a halt. issuing interpretations should be done on a  
>more regular basis AND only when there is fair ambiguity causing  
>confusion in the drafting.


...depend upon how one views ICANN's role relative to these policies.  The
registrars and ICANN are contracting parties.  I'm not suggesting that
anyone litigate, but it is generally not the case where one party to a
contract is given the controlling view of how that contract is to be
interpreted.  Most contract disputes never get anywhere near a court,
because the parties work out ambiguities by methods other than an assertion
of "I'm right and you're wrong".  If the contract needs clarification, then
by all means it should be clarified.

The RAA requires that registrars contract for domain registrations for fixed
annual terms.  As Tim notes, whether the registry sets a "registry
expiration date" ahead during auto-renew is not the same thing as the
expiration date of the contract entered into by the registrar.  So, where
one comes out on post-expiration transfers depends on how one is reading
"expiration".

Now, GoDaddy is not a "rogue registrar" by any means, and I believe they
have a good faith interpretation of these agreements that differs from
ICANN's.  To recognize a good faith difference of opinion is not to take
sides, but I don't believe "ICANN's interpretation is controlling" is the
correct approach to sorting it out, either.

But looking at a "domain registration" as a set of obligations on a
registrar, there are several time scales:

1.  Obtain and record registrant data and transaction information.  This is
a three-year obligation.

2.  Transmit nameserver data - upon registration.

3.  Provide WHOIS data.  Without looking, I believe this has to be done
within 24 hours of 2.

3.  Start to allow transfers.  This obligation arises 60 days after "an
initial registration".

And so on. 

On "expiration", and for the purpose of observation and not comment, the
Tucows agreement states:

"In the event that you fail to renew your domain name in a timely fashion,
your registration will expire and we may, at our discretion, elect to assume
the registration and may hold it for our own account, delete it or we may
sell it to a third party. You acknowledge and agree that your right and
interest in a domain name ceases upon its expiration and that any expired
domain name may be made available for registration by a third party."

Now, I understand that a registration agreement defines the maximal power of
the registrar, and any registrar may at any time, or even regularly, waive
strict application of their own agreement.  However, the Tucows agreement,
like most agreements, states directly that the registrant's interest in the
domain name terminates "upon its expiration" - in accordance with the RAA
obligation to contract for registration services for fixed terms.

Quite a few registrars make some sort of change to the whois data upon
expiration (and by that I mean expiration of the registrant's contract with
the registrar).  In that instance, *who* is the Registered Name Holder.  If
I am reading Tucows agreement fairly, and assuming it is exercised as
written, then at expiration if Tucows sells the domain name to a third party
or assumes the registration for itself, then Tucows is the Registered Name
Holder, and can be that *during* the registry auto-renew grace period.  In
that instance, the former registrant is no longer the Registered Name
Holder, is not authorized to transfer the domain name, and the transfer
should fail.

In practice, Tucows might do any number of things, and I'm not particularly
curious to know exactly what, but a close reading indicates that Tucows
expressly disclaims any obligation to the registrant after "expiration".

Now, there are utterly no conditions on when a registrar can unilaterally
revoke a domain registration.  Some registrars have an abuse policy relating
to use of a domain name for spam or illegal purposes, some do not.  

Reading on...

"We, in our sole discretion, reserve the right to deny, cancel, suspend,
transfer or modify any domain name registration to correct a mistake,
protect the integrity and stability of the company and any applicable
registry, to comply with any applicable laws, government rules, or
requirements, requests of law enforcement, in compliance with any dispute
resolution process, or to avoid any liability, civil or criminal. You agree
that we shall not be liable to you for loss or damages that may result from
our refusal to register or cancel, suspend, transfer or modify your domain
name registration."

I don't see a "request of law enforcement" as an exception to the transfer
policy.  If Barney Fife calls you up from the Mayberry Sheriff's Office and
asks you not to transfer a domain name, it appears that Tucows has assumed
the discretion to comply with that request.


>john, one of the things (among many) that I love about you is that  
>you do not believe in litigation for litigation sake. I am surprised  
>to hear you say what you did below.

Litigation is almost always a symptom of a failure of reason.  The only
point was that in a contract situation it is not normally the case that one
party of the contract is assigned the role of issuing authoritative
"interpretations" of the contract.  If the parties cannot come to the same
interpretation, then one has to find a neutral party to provide one.

As we move toward a more rational RAA situation in which there are remedies
other than "pull the plug", the issue of "who gets to define a violation" is
going to be much more critical.