GNSO working group

[Edward Nunes]

Hey all,

I just wanted to update you all on what's been happening with the
Registration Abuse Policy Working Group.

Since I joined the GNSO Registration Abuse Policies Working Group the
discussion within the group has focused on the definition of registration
abuse. During the April 27th meeting we decided on a working definition of
abuse:


Abuse is an action that:

1. Causes actual and substantial harm, or is a material predicate of such
harm, and

2. Is illegal or illegitimate, or is otherwise considered contrary to the
intention and design of a stated legitimate purpose, if such purpose is
disclosed.

Notes:

* This is a working definition as per group consensus on April 27, 2009 and
may be re-visited should the WG find it inadequate after examining some
specific examples.

* The party or parties harmed, and the substance or severity of the abuse,
should be identified and discussed in relation to a specific proposed abuse.

* The term "harm" is not intended to shield a party from fair market
competition.

* The above definition of abuse is indebted to the definition of "misuse" in
the document "Working Definitions for Key Terms that May be Used in Future
WHOIS Studies" prepared by the GNSO Drafting Team [18 February 2009, at
http://gnso.icann.org/issues/whois/whois-working-definitions-study-terms-18feb09.pdf
].

While this is the definition we are sticking with for now, there has been
numerous issued raised about this definition both in and outside the working
group. Issues raised included:

   -

   The use of “stated” and “disclosed in clause 2 is redundant.
   -

   The use of “illegal” and “illegitimate” in clause 2 is redundant.
   -

   There should be an intent requirement for violators, so as to limit abuse
   to malicious abusers.
   -

   “Illegal” is too vague of a term, as the law varies among the
   jurisdictions of the world.
   -

   “Harm” is too broad of a term.
   -

   The section “material predicate of such harm” creates an overly broad
   definition of abuse.
   -

   “Illegitimate” is too vague of a term.
   -

   “Illegal” is a legal conclusion derived from a court proceeding.
   -

      There has been some preliminary talk about the process to determine if
      whether something constitutes registration abuse, but no
decisions have been
      made on this subject.

While we are sticking with this definition for now, we understand there are
issues with it and expect to revisit it at a later time.

In the May 11th meeting we focused on defining “registration”, and how this
definition will effect the scope of the working group. It appears that there
is no easily borrowed definition of “registration” from ICANN, and there is
debate about whether registration abuse can only occur at the exact moment
in time the registration is created, or whether it can refer to an abuse at
any time regarding registration.
This debate on the definition of "registration" in registration abuse
continued into the June 1st meeting.  As RAP-WG member George Kirikos put
it, the problem was a definitional one as to whether registration refers to
a) the act of registering, or b) an entry in a register.

This definitional issue was important because, for example, if registration
were taken to mean an entry in a register a person who registered a domain
name could be found guilty of registration abuse for causing consumer
confusion with a site that was registered after it.  While there was much
debate we determined that registration abuse refers to abuse at the time of
registration because abuse after registration would be abuse of domain use,
not abuse of domain registration.


At our most recent meeting we started gearing up for compiling more
information on types of registration abuse, a major part of the RAP-WG
charter.  A preliminary list of abuses is available at *
http://tinyurl.com/l8kzsb.  *We began discussing the abuses on this list,
but there is still much more work to be done.  This topic will be continued
to worked on in the coming weeks/months.


And that's the word from the RAP-WG.


Sincerely,

Ed Nunes
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