"Gomes, Chuck" wrote:
> Ed,
>
> Please help me understand what this means: "you yourself recognized that an
> absent Registry is a problem in a Registrar-registrant issue over
> what/when/how something was or was not registered." What are you
> asserting that I recognized?
It is in the list archives. On Wed, 12 Jan 2000, I wrote:
} In essence, the difference is that the reseller (Registrar) follows a sales
} system (Shared Registry) that denies tracing the producer (Registry), denies
} responsibility to the buyer from the producer, denies access to producer
} logs in order to prove buyer's rights, keeps the property of what is sold with
} the reseller, gives the buyer no authority over what was bought, and denies
} legal recourse as the buyer may see fit.
and you replied on the same day, after that paragraph:
> I agree with you that the Registry would be of no help in this situation
> unless there is evidence of a violation of the Registry-Registrar agreement.
In summary, you agreed "that the Registry would be of no help *in this situation*"
.. and, what is "this situation"? It is when the Registry makes itself absent from the
registrant's viewpoint, as I wrote originally. The registrant is the missing dot.
Thus, that is why I said that you agreed that "an absent Registry is a problem in a
Registrar-registrant issue over what/when/how something was or was
not registered.", as I wrote today.
After that paragraph, you also made the following useful remark:
> You are correct that the registrar is not accredited by the Registry but
> rather by ICANN.
which further shows that NSI Registry considers itself so far removed
(ie, absent) from the Registrar-registrant transaction that it does not even
consider suitability of purpose in the accreditation process!
But, after all, why would ICANN accredit (ie, extend belief to) a Registrar
if that would be incompatible with the very purpose that accreditation is
being granted, which is to sell the inclusion of domain names in that
very Registry?
That is why I wrote in my first message that the Registry finds itself in a
very awkward position. A Registry is selling to the Registrar a service
which bears the name of the registrant (i.e., the DNS name), that may
be trademarked by that registrant, is made-to-order of the registrant, must
be serviced by the Registry on a 7/24 hour basis to the world at large on
behalf of the registrant, and points from the Registry to a
registrant-defined address. And, yet, the Registry wishes to deny any
connection to the registrant! And, even suitability of purpose.
Indeed, in this situation, the Registry would be of no help in case of
a dispute between Registrar-registrant as you agreed -- but simply
because it has made itself invisible. A different question is whether
it is legal to do so, if "freedom of contract" can overcome "suitability
of purpose". 100 years ago, US car manufacturers learned it cannot
and "caveat emptor" was defeated as a commercial doctrine. Would
this now extend to cyberspace? My guess is that it will not, especially
because here the Registry would have to cope with trademark law,
which penalizes citing the trademark without citing its rightful owner
(ie, the real domain name holder -- the registrant), *even* under license.
Interesting times ahead.
Cheers,
Ed Gerck
