Andrew McLaughlin wrote:
>
> I'm extremely disappointed that you would stoop to attack my integrity
Not half so disappointed as I am to see that the draconian,
WIPO-inspired, anti-registrant provisions of the Accreditation
Guidelines have been reproduced, in a form still worse than before,
in the Accreditation Policy statement.
> -- I
> thought we were able to have a nice set of face-to-face conversations in
> Singapore (and in Boston before that), and hoped that we would be able to
> carry on further discussions on substance. Though I don't always agree with
> you, I often find that your instincts comport with mine -- namely, that the
> interests of individual users, non-profits, and other "little people" need
> to be heard and protected in the ICANN process. In that context, your
> willingness to mischaracterize my remarks and call me duplicitous is, as I
> said, extremely disappointing.
I, too, had hoped that we would be able to continue to discuss and
debate the substance of these matters. But how can that be done,
when you and the ICANN Board not only ignore public opinion but lead
people to believe that you are going to respect their opinions, when
you have no intention of doing so? T trusted you, and you have
betrayed that trust.
> In Singapore, you and I discussed whether or not the Accreditation
> Guidelines would include any parts of the unfinished WIPO recommendations.
> I told you that the WIPO process was not completed, and so ICANN would wait
> until it received the final WIPO report, and then launched a full round of
> public comment on it, before deciding whether and in what way to adopt
> WIPO's dispute resolution recommendations.
Then why didn't you do that instead of not only including them in
the Policy and the Agreement, but adding to them and making them
even worse (see my comments on them, as in my first message,
reproduced below)?
You certainly can't pretend that it's only the ADR that's in
contention, can you? You know full well that it is all and every one
of these measures, so insulting and prejudicial to users, that stem
from the trademark interests and the WIPO recommendations. Do you
play on semantic minutiae to defend an indefensible position?
> I do not consider our
> accreditation guidelines to be "WIPO-inspired." They were drawn
> up by ICANN staff and counsel to meet our obligations to introduce > competition to
>the market for domain name registration
> in the .com, .net, and .org generic top
> level domains, within the structure established by Amendment 11 to the
> USG/NSI contract.
How does taking domain names away from registrants because the
registry or registrar has made a mistake introduce competition to
the market? What has it, or any of the other anti-user provisions in
your Policy and Agreement, to do with Amendment 11? Nothing! You
gratuitously attack the users, in order to please the trademark
lawyers. Have you no shame?
> As I said to you, I have serious reservations about
> WIPO's draft dispute resolution proposals, which I expressed publicly > at the WIPO
>consultation in Rio de Janeiro. But those recommendations (whatever
> they turn out to be) will be fully debated in public, with plenty of
> opportunities for you and the rest of the community to express its views,
> before ICANN takes action on them.
None of the anti-registrant provisions in your Policy and Agreement
were debated in public. They are an attack upon users. They insult,
disparage, and insult us. They deprive us of our freedom to use the
Domain Name System. Yet they werenbever brought up nor discussed.
When I questioned their sense, I was lead to believe that they would
be removed until the user/registrant public had had the chance to
comment on them. Yet you have re-inserted them in your Policy and
Agreement, against all sense and good judgement, and in
contradiction with what was promised.
> If you want to talk substance, I'm more than happy to talk substance.
What's the point of talking substance with you or anyone else from
ICANN if you're going to just go right ahead and introduce,
unilaterally, every prejudicial measure that you feel like against
the constituency that I and my organizatuon represent? Your claim to
be willing to talk substance is disingenuous. You may be willing to
talk, but it's talk that's wasted for us, since you're apparently
going to act regardless of the talk, in spite of it, and even before
it has happened.
> But
> I'm not going to carry on our face-to-face conversations (which I have
> considered useful and interesting) online if you insist upon putting words
> in my mouth and attacking my integrity.
I said nothing that wasn't the truth. You told me that all these
horrid, inadmissible, anti-registrant provisions would be removed
until the community had had the chance to discuss and refute them.
Then you went and stuck them in, and added even more. Is that the
act of someone concerned with their integrity?
> Your arguments are too important to
> trivialize by personal attack.
When the people with whom one is attempting to debate take
unilateral action in contradiction to their word, there is no
recourse left but to call them on their breach of trust. If you were
being honest, you would have tried at least to explain away these
disgusting and insulting provisions that you have put in despite
your word to the contrary. The fact that you have not, because you
cannot explain them, except perhaps as a sop to the monstrous
anti-user prejudice of the business and trademark contingents that
you and the Board feel constrained to placate by denigrating the
users and depriving us of our rights, shows how insincere is your
claim to be willing to debate the issues.
You say again that you are willing to debate the issues and that
there is still time to do so, in spite of the fact that your
provisions are already published? Well, here they are, reproduced
below! Debate them if you can! Excuse, if you can, the insult to me
and the other domain name registrants that your constraining,
absurd, and undemocratic provisions intend! And then, if you really
would like to see what a decent, normal, and conscientious domain
name authority's provisions are, take a look at the CDNCC proposal
for CIRA, the Canadian registry
(http://www.canarie.ca/cdncc/finalreport.html). Take a look at their
provisions for protecting the registrants, rather than depriving
them of their rights as you have done. And when you have answered
the refutation of your provisions (below), and studied the
intelligent provisions of the canadians, and removed your rotten
provisions from your Policy and Agreement, then and only then will
we be able to resume a meaningful dialogue.
> -----Original Message-----
> From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]]
> Sent: Friday, March 12, 1999 10:35 PM
> To: [EMAIL PROTECTED]
> Cc: [EMAIL PROTECTED]; [EMAIL PROTECTED]; [EMAIL PROTECTED];
> [EMAIL PROTECTED]
> Subject: The ICANN Accreditation Policy: Dissimulation and Duplicity?
>
> 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?
>
> ...................................................
> 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?
> ..........................................................
>
> ============================================================
> International Congress of Independent Internet Users (ICIIU)
> http://www.iciiu.org [EMAIL PROTECTED]
> ============================================================
