RE: [registrars] OUTCOMES REPORT OF THE GNSO AD HOC GROUP ON DOMAINNAME TASTING

["John Berryhill" <john@xxxxxxxxxxxxxxxxx>]

>No, at the highest level I'm saying that ICANN should properly 
>regulate, enforce or get out of the way. 

At the highest level the RAA, as drafted, is not an appropriate tool for
regulating or enforcing anything.  It is an all-or-nothing proposition.  

That's the entire point of the ongoing RAA revision exercise. 

>Its not up to me to find ways to 
>enforce the agreement anymore than it is up to you to find 
>ways around it. 

Let him who is without sin cast the first stone.

There are legitimate and reasoned differences of interpretation.  The
problem with an "it means what I say" approach is that if your
interpretation, however reasonable, does not agree with whomever is assigned
the role of authoritative interpreter, the RAA entitles ICANN to withdraw
your accreditation.  There are no other remedies in the document.

Now, last year, we had a situation in which, in one context, certain ICANN
staff had taken the position that since (a) a domain must be the subject of
a valid registration contract, and (b) a party cannot contract with itself,
then it follows:  a registrar cannot register its own domain name.

It was, at the time, a cute intervention on ICANN's part in a UDRP
proceeding in which the complaint eventually failed, but the reasoning is
utterly sound, correct, and bore the signature of Tim Cole.  Who could argue
with that?

The domain name Tucows.com is not compliant with the RAA.  It is registered
to Tucows, and through Tucows, and it thus cannot be incident to a valid
registration contract.  So, if it is your job to "find ways to enforce the
agreement", I will be pleased to see you delete this non-compliant domain
name immediately.  It might even get a couple of hits a day and be thus
worth something in a delete auction.

Now, maybe you were in the room in Florida last year when Mike Zupke
informed those registrars present that ICANN would not enforce the RAA with
respect to an unspecified set of domain names which a registrar registers to
itself.  If you were, then, congratulations, you happen to know about this
particular and vague non-enforcement promise which Mr. Zupke made verbally
to those who were there.

It just seems fundamentally flawed that the proposition of whether
Tucows.com is or is not a RAA compliant domain name depends upon whether the
authoritative view of the RAA is that of Mr. Cole in August or Mr. Zupke in
October.  Strictly speaking, Mr. Zupke agreed that such names are
non-compliant, but that there would be no enforcement taken.  This pledge
presumably is valid as long as Mr. Zupke is in good health and gainful
employment at ICANN.

The prospect is downright horrific when you go back to the main premise of
the RAA - i.e. as drafted, a single non-compliant domain name is a
sufficient ground to have your accreditation revoked.  

Yes, in practice ICANN doesn't do that.  But a system of rules should not
depend upon whether someone charged with enforcement happens to be in a good
mood on any given day.