Mr. McLaughlin-
You told me (and others?) in Singapore that the WIPO-inspired
provisions of the Accreditation Guidelines prejudicial to domain
name holders would be removed pending the completion of the WIPO
process and further input from the community. Now, only two days
after the WIPO consultation of March 10th - which I and others
attended at great personal expense, and at which the WIPO panel
agreed that the recommendations in RFC-3 needed to be revised so as
to reduce their prejudice to domain name holders - you have
published an Accreditation Policy containing provisions as
prejudicial as, or more prejudicial than, those contained in the
previous Accreditation Guidelines (see below).
How do you explain this apparent duplicity?
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Commentary on ICANN Accreditation Policy and Agreement (March12):
ICANN's Registrar Accreditation Policy does not mention a single
right of a domain name registrant, only rights of registrars,
registries, and ICANN. It treats domain name registrants, the users
of the Internet and the creators of e-commerce and the new wealth in
the U.S., as objects to be exploited, or as criminals.
Section I of the Accreditation Agreement ("Definitions"), while
carefully defining "registry", "registrar", "registry
administrator", "ICANN", "NSI", et cetera, includes no definition or
term or mention of the domain name registrant or holder.
Section III.F. ("Rights in Data") says: "The registrar shall be
permitted to claim rights in the data elements III.C.1.d and e and
III.D.1.d through j concerning active SLD registrations sponsored by
it in the registry for the .com, .net, and .org TLDs...". Data
element D.1.f is "The name and postal address of the SLD holder".
How is it that ICANN can give a registrar rights in a registrant's
name and address? The registrant's name and address no longer belong
to the registrant? The registrar, or ICANN, can use the registrant's
name and address as they see fit? For what purpose? To sell to third
parties, so that the registrar, the registry, and ICANN can profit
from the registrant's personal data?
Section III.J. ("Business Dealings, Including with SLD Holders")
subsection 5 says: "Registrar shall register SLDs to SLD holders
only for fixed periods. At the conclusion of the registration
period, failure to pay a renewal fee within the time specified in a
second notice or reminder shall result in cancellation of the
registration." Defining registrations as being for only fixed
periods makes them so precarious that no individual or company with
small resources could afford to take the risk of investing in them.
This provision alone could destroy free enterprise on the Internet.
Registrations should be for indeterminate periods, at the discretion
of the registrant. Isn't the DNS at the service of the registrant?
Why has the registrant no rights? This provision should read:
"Registrations of SLDs will be for indeterminate periods of time and
cancellation of the registration shall be at the discretion of the
SLD holder, except in such cases where the registrant does not pay
the applicable fees in a timely manner or when the SLD has been
removed from the registrant by a decision of a competent legal
authority."
Section III.J.7.g says: "The SLD holder shall represent that, to the
best of the SLD holder's knowledge and belief, neither the
registration of the SLD name nor the manner in which it is directly
or indirectly used infringes the legal rights of a third party." How
can this be complied with, unless the registrant expends tens of
thousands of dollars searching the world's trademark databases and
the records of all company names registered throughout the world, an
impossible task. And why should it be? What justification can there
be for requiring a registrant to do this, which is the task of a
party that attacks the registrant's use of and right to the name,
and not of the registrant?
Section III.J.7.i says: "The SLD holder shall agree that its
registration of the SLD name shall be subject to suspension,
cancellation, or transfer by any ICANN procedure, or by any
registrar or registry administrator procedure approved by ICANN, (1)
to correct mistakes by Registrar or the registry administrator in
registering the name or (2) for the resolution of disputes
concerning the SLD name." What possible justification is there for
revoking a domain name because a registry or registrar made a
mistake, that is, penalizing the registrant for an error made by the
registrar or registry? And do you pretend that the registrant be
subject to cancellation of the domain name as a means of resolving a
dispute? Cancellation can only be a penalty imposed by a competent
legal authority, not a means of resolving disputes.
Section III.K. ("Domain Name Dispute Resolution") says: "During the
term of this Agreement, Registrar shall have in place a policy and
procedure for resolution of disputes concerning SLD names." What
policy or procedure will the registrar have in place? Any one that
the registrar chooses, undefined by ICANN or by a legal authority,
and to which the registrant will be required to submit without the
registrant's input or consultation? There is no arbitration
procedure in the world, save perhaps in a dictatorship, that is the
work of only one side in a dispute. What about disputes arising from
abuse of the domain name holder's rights by the registrar or the
registry, such as for example the misuse of the holder's personal
information, or undue interruption in service of the holder's domain
name? Where are the provisions for protection of the registrant's
rights?
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International Congress of Independent Internet Users (ICIIU)
http://www.iciiu.org [EMAIL PROTECTED]
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