Expiry clause 5.3.6 update

[Whois-Search]

While I welcome the addition of this line in bold to the expiry clause 5.3.6:

5.3.6. You may, no earlier than 30 days after the expiry of a domain name on an Accredited Channel Partner Tag, take steps to transfer the domain name into your name, provided that you have previously informed the Registrant that you intend to do this and obtained their explicit consent to your doing so. Such consent must be obtained no earlier than 30 days before the date on which the domain name is due to expire, and no later than 30 days after the date on which the domain name expired. Even if you transfer a domain name in these circumstances, the original Registrant of the domain name must always retain the right to renew the domain name in question as set out in paragraph 2.1.12 above; and

See draft registrar agreement redline: http://www.nominet.org.uk/sites/default/files/RevisedRegistrarAgreement-November2013redline.PDF

Which puts another herdle in the way of the top 20 automatically auctioning off expired domains....

These statements by Nominet under "Treatment of expired domain names under the Registrar Agreement" on Page 20 of the explanatory notes I do not agree with:

http://www.nominet.org.uk/sites/default/files/ExplanatoryNotesandSummaryofFeedback.pdf

As noted elsewhere, the Tag Classification system is intended to be accessible to Registrars of all sizes and business models. While we appreciate that there may have been changes that could be made to the June 2013 draft to make this accessibility more certain, we do not agree that these provisions are unfairly biased towards large Registrars.

True however which registrars have the most expired domains at anyone time? Errr the Top 10? Who will make the most money out of this clause?

As a general principle registrants are, and have always been, free to transfer domain names to whoever they wish, up until the point at which it is cancelled. If they choose not to do so, then the domain name will be cancelled and will be available on a first-come, first-served basis. This position has not changed under the expiry provisions within the new Agreement.

While it is true a registrant can transfer "domains names to whoever they wish" - the rest of this sentence is misleading. At the moment a registrar can not unilaterally transfer a UK domain name i.e. change the admin email address and click I agree on registrant transfer. Never mind paying the £10 + VAT transfer fee on behalf of the registrant - therefore to use this analogy is nonsense!
See: http://expiry.org.uk/current-process/

We acknowledge that the provisions that allow a Registrar to take control of a domain. with the Registrant’s permission, will be considered an attractive incentive by many Registrars. We have also strengthened the provisions to make it clear that consent has to be given during a 60 day window around the expiry date (not at registration).

It will also be an attractive proposition to Sedo MLS and Afternic DLS (now owned by Godaddy) to sign up all the top UK registrars for expired domains.

Regarding the concerns raised that these proposals will ‘kill off’ drop catching, Nominet does not have any particular view on this practice, and has not set out to eliminate it when introducing this expiry policy. The primary objective of this policy is to safeguard the interests and wishes of registrants, who have entered into a contract with their Registrar. In any event, not all domain names will be held on Accredited Channel Partner Tags, and not all Registrars who use such Tags will necessarily choose to deal with expiring domains in the way permitted under the new Agreement, and not all Registrants will agree to a transfer to their Registrar.

This is a true statement however again the Top 20 registrars account for most of the registry database and most of them will be accredited.

We do not, therefore, agree that the expiry policy within the Agreement deviates from the recommendations of the issue group.

While it is true the issue group did recommend the five points Nominet give in the explanatory notes.

It is also true that statements like the following exist in the Issue Group documents:

"There was concern that some large registrars may retain expired domains and transfer the registration to themselves in order to increase their portfolio".

"Participants of the group from the registrar community highlighted that in their experience it is difficult to identify a domain with potential value from within the large number of domains under their management".

"Further, some stakeholders called for the auctioning or retaining of domain names by the registrar to be prohibited as permitting registrars to engage in these practices would fundamentally conflict with the principal of first-come-first-served".

See: http://expiry.org.uk/issue-group/

These may have not been final recommendations from the group however concerns over registrars auctioning expired domains did exist and were documented.

 

[Stephen]

Unintended consequences

The clause about transferring the domain is clearly put in to the benefit of large registrars - BUT why have it in at all, what is the benefit to the UK namespace?

The problem for something that should not be there in the first place, is to build safeguards, like the 30 days linked with expiry date not registration, is the side-effects.
Although pleased Nominet has listened to the concerns of those that don't want the clause and I believe Nominet have made a genuine effort to protect the registrant, the problem is the registrants will 100% get around it, within the rules.

Possible Example: Registrar sends an email notice out to say your domain expired 30 days ago to renew you domain from now, we need it in writing and £50 etc. or please tick the box on this link and please see terms and conditions explaining what will happen to your domain.

Best not to have it in the first place.

There will also be problems for Nominet after a registrar sells the domain and the client finds out.

Nominet please remove the transfer fee to all and please do it now, it really looks like Nominet are only going to remove the charge to allow large registrars the benefit of getting hold of client domains for no cost.

 

[bensd]

Does this mean that large registrars could simply transfer un-renewed domains and sell them off at auction?

 

[Edwin]

Does this mean that large registrars could simply transfer un-renewed domains and sell them off at auction?

Yes. Though theoretically they have to ask permission of the old registrants to do so first...

I say theoretically, because that permission most likely could be sought in an obscure or roundabout way, say by burying something in a thick wad of legalese in the T&C that they know nobody will read (but which will mean they're not breaking the new rules).

Incidentally, GTLD registrars (.com, .net etc.) have been doing so for years (a decade or more?) and most of the large registrars have warehoused tens or hundreds of thousands of desirable pre-owned domains that never made it to the drops.

 

[Stephen]

Basically YES

Does this mean that large registrars could simply transfer un-renewed domains and sell them off at auction?

Basically YES if they follow the rules on obtaining registrant permission.

They can even put it on sale without renewing it and only renew if sell it or maybe get views on the listing page.

Or use the domain to register the .uk version and allow the .co.uk to drop.

With the removal of the transfer fee the Nominet wants to introduce as part of these changes, it looks like a real "win" for the large registrars.

 

[foz]

With the removal of the transfer fee the Nominet wants to introduce as part of these changes, it looks like a real "win" for the large registrars.

And its no accident with them controlling the voting block. If the Execs want to curry favour and stay in office they will clap when told to.

 

[Lucien Taylor]

I say theoretically, because that permission most likely could be sought in an obscure or roundabout way, say by burying something in a thick wad of legalese in the T&C that they know nobody will read (but which will mean they're not breaking the new rules).

I think the new clause in revised 5.3.6 tries to address this:

Such consent must be obtained no earlier than 30 days before the date on which the domain name is due to expire, and no later than 30 days after the date on which the domain name expired.

That suggests to me - whatever you may have buried in your T&Cs - you have to engage in a new permission-obtaining transaction with the Registrant during the expiry window. However, in practice - how would we as competitors prove that somebody like 123reg 'didn't'?

 

[Edwin]

Ah, but would sending an email with a lot of blah blah blah including something like the following buried in the middle be considered consent? "Your domain name is expiring in 30 days. By continuing to maintain your domain with XYZ registrar, you consent to the XYZ registrar domain expiry policy at LINK"

Then you bury the real stinger deep in the linked-to policy document.

Lawyers specialise in finding all sorts of wriggle room like this...

 

[Stephen]

creative way

That suggests to me - whatever you may have buried in your T&Cs - you have to engage in a new permission-obtaining transaction with the Registrant during the expiry window. However, in practice - how would we as competitors prove that somebody like 123reg 'didn't'?

But as I tried to say in post 2 above- it will not be a straight forward ;
"please let you us have you expired/expiring domain as we want to sell it and take all the money for ourselves"
it will be done in a creative way, within the rules!

Possible Example: Registrar sends an email notice out to say your domain expired 10 days ago to renew you domain from now, we need it in writing and £50 etc. or please tick the box on this link and please see terms and conditions explaining what will happen to your domain.

 

[Lucien Taylor]

Ah, but would sending an email with a lot of blah blah blah including something like the following buried in the middle be considered consent? "Your domain name is expiring in 30 days. By continuing to maintain your domain with XYZ registrar, you consent to the XYZ registrar domain expiry policy at LINK"

Then you bury the real stinger deep in the linked-to policy document.

Lawyers specialise in finding all sorts of wriggle room like this...

Yes. But the rhetoric of p.21 of the Explanation notes [http://www.nominet.org.uk/sites/default/files/ExplanatoryNotesandSummaryofFeedback.pdf is even stronger than the contract :

We acknowledge that the provisions that allow a Registrar to take control of a domain. with the Registrant’s permission, will be considered an attractive incentive by many Registrars. We have also strengthened the provisions to make it clear that consent has to be given during a 60 day window around the expiry date (not at registration).

I am going to push for Nominet to produce some draft clauses (aka ICANN's draft Registrar clauses), making it clear what exactly needs to be relayed to the Registrant and that it cannot be buried in some chain of secondary documents.

Even so, how would we prove it if the likes of 123reg et al. were to fail to comply? It comes back to compliance. This is going to be a bigger issue, it's a mess at ICANN and after years of failure they are still trying to put it right, with lots of stakeholders shouting foul play.

 

[Skinner]

Would it not be possible to have the registrar email a link to the registrant, who has to login to their nom account and accept that the name can be transferred to the registrar ?

Removes automation but adds security and reduces fowl play.

This should only be possible AFTER suspension as well.

I think we should all be pushing to stop registrars tasting domains, which can be written into this, that registrars are not allowed to modify name servers.

 

[Skinner]

I didn't think about them just changing the email and getting the password.

Even if you made it so the email can't be changed once domain moved into suspended, the unscrupulous will just change it earlier.

Surely nominet can gather enough info if the process MUST be done through their site, that should complaints come to light, if a registrar has been underhanded it can simply be reversed.

Maybe a card imprint should be taken ? yeah makes it more hassle, but means people are absolutely sure they want it released.