Good idea for Nominet ?

[Beasty]

If Ed Philips said that, I bow to his opinion; IANAL and he is.

Took me a while to work out what IANAL meant - at first blush it seemed a bit rude! Now if it means I Am Not A Lawyer - then IAAL. IANAD though - so quite a bit of what follows in your comments simply does not apply to me.

Once again the word "fair" enters the arena and I still cannot see why you regard the DRS as not fair. Both sides get to put their written submissions, both sets of submissions are studied by an independent Expert, and a decision is made on the evidence presented by both sides. Isn't that (in its simplest form) how arbitration and the Courts work? And yes, I know it's more convoluted than that in practice, but sometimes you have to oversimply a thing to make a point.

Plenty of reasons that will be made clear in due course. I've said why I am obliged to keep most of my powder dry - but I have asked you to deal with a few specific things that I think favour the Complainant. Tellingly, you have not offered a reply.

Here's another. Why does the Claimant get two 2,000 word submissions (which can both include new evidence/claims - one of which is unanswered) - while the Respondent only gets one. The opportunity to speak both first and last is a major advantage and again highly unusual - especially where the length of submissions is so tightly controlled.

If you are suggesting that Nominet is a private monopoly, the OFT disagrees with you.

I'd be grateful if you could point me at where the OFT has said this.

If you are suggesting Nominet is controlled by a handful of ISPs setting their own rules, this is not true either. Just as Nominet is mandated to consult with the wider stakeholder communities on issues that affect them, it is also mandated to consult with all members before making any changes to the constitution. Nothing stays the same; progress is inevitable; but not all progress is a good thing. Personally I believe the problems that were encountered at the recent EGM (both on the board's side and big members' side) were just a matter of communication; or the lack of it. These issues are being addressed and should be resolved to the benefit of the internet community we serve.

The EGM showed that 3 or so members control the voting structure at Nominet. You can not seriously argue with that. They each have 10%+ of the vote - which on the basis of the turnout amounted to over 60% of the votes cast.

This "community" notion needs to be scotched. The "community" is limited to those with sufficient commercial interest to pay to belong. The real stakeholders in the .uk internet community is every person and company in the UK. They should not need to pay £500 to join the club.

In any domain extension there is one Registry and a bunch of registrars. The contract terms may differ between the different Registries and Registrars but in general that's how things work. What you seem to be suggesting is that other Registries be created to offer people a choice as to where they register their .uks? If you create more than one Registry you will have more than one WHOIS database and I can see all sorts of problems with cross-referencing of names registered or due for renewal. A Registry is a registry and doesn't compete per se. Registrars are the entities that compete and offer choice.

One WHOIS database - a controlled list of competing regsistrars who offer competitive terms (including whether their clients want ADR or not) to consumers. Think BT and unbundling the local loop; or other utilities with one central supply. Or give it to the Patent Office and let us all own it - as we should.

I am not going to get involved in discussing the intricacies of a specific DRS decision except to say this; Nominet per se did not and cannot change an Expert's decision. Nominet has no authority over DRS Experts who are entirely independent of the Registry; and facts do not cease to exist because they are ignored!

Neither does the Expert once it has been sent to the parties. The term "Decision" is clearly defined in the DRS Policy. The Policy/Procedure does not cater for "revised" Decisions. The Decision - as sent to the parties and as defined in the DRS - should have stood unaltered. Those are the rules in black and white.

 

[Jac]

Most caught/registered domains are not tm or brand.

They are a limited commodity for which many people will attempt all things in order to get them when they find they are too late to register them.

Sounds like you've broadbrushed all of us. Have we seen your true colours JAC?

Well here we go with subjective interpretations again and that's exactly what's wrong with being subjective; what you think I said and what I actually said are two completely other things. I said:

The dropcatcher and domainer community are stakeholders too and deserving of my consideration. However, I think they should have the kahoonas to accept the anomalies in their modus operandi when viewed by the rest of the community. The thing is; consideration is a two-way street. If you wish to enjoy it for yourself you must be prepared to extend it to everyone else whatever their creed, persuasion, or race, and no matter whether you disagree with them or not. So whether I agree or disagree with you or the dropcatcher/domainer community, I acknowledge their rights to "fair" treatment in terms of FCFS and DRS. My reservation is this; do they acknowledge they have as much responsibility to the rest of the community as they demand for themselves? (It doesn't seem so in terms of what you say about the DRS.)

On looking at what I wrote again, I should actually have said "The dropcatcher and domainer community are stakeholders too and deserving of the same consideration as all other stakeholders"; otherwise it looks a bit patronising (which wasn't my intent). As for the rest of it, I think it is perfectly reasonable to ask the same consideration of someone else as they might demand for themselves. Don't you?

Re "true colours", I'm a WYSIWYG kinda guy. Ask Whois-Search (a regular poster to this forum). We've had many offlists regarding personal motivations, and the issues being discussed here.

Regards
James Conaghan
http://www.conaghan.me.uk
[email protected]

 

[vjroberts]

Pass. I did not write the DRS.

Who did write the DRS ?

 

[Jac]

Took me a while to work out what IANAL meant - at first blush it seemed a bit rude! Now if it means I Am Not A Lawyer - then IAAL. IANAD though - so quite a bit of what follows in your comments simply does not apply to me.

IANAL does indeed mean 'I am not a lawyer'; but if you are I'd say you chose the right handle; Beasty; though I won't bore you with endless lawyer jokes!

Plenty of reasons that will be made clear in due course. I've said why I am obliged to keep most of my powder dry - but I have asked you to deal with a few specific things that I think favour the Complainant. Tellingly, you have not offered a reply.

Tellingly? A bit condescending of you old boy considering I have taken the time to offer my opinion. Lawyer or not, that's all either of us has got, our opinion; and even legal opinion is subject to opposing opinion at times, but then you already know what The Law is, don't you?

Here's another. Why does the Claimant get two 2,000 word submissions (which can both include new evidence/claims - one of which is unanswered) - while the Respondent only gets one. The opportunity to speak both first and last is a major advantage and again highly unusual - especially where the length of submissions is so tightly controlled.

As it happens, I think this particular bit of the DRS is wrong too, but that's only my opinion. I also think £3k for 3 experts (at appeal stage) doesn't equate when I can get one for £750 but that's only my opinion. And there are other 'bits 'n bobs' (that's a legal expression) I am not particularly happy with either; but please take note of what I said in my last; that the DRS is currently under review and the wider stakeholder communities will have a chance to see any proposals, changes or modifications, in the resulting consultation document. If you feel strongly about the issues, you can respond to the consultation, as can anyone.

I'd be grateful if you could point me at where the OFT has said this.

Nominet is in constant dialogue with many consumer, government, and trade bodies, including the OFT, DTI and the Home Office. All these matters (monopoly, competition law, etc) have been discussed at great length and I'm sure they will be again.

The EGM showed that 3 or so members control the voting structure at Nominet. You can not seriously argue with that. They each have 10%+ of the vote - which on the basis of the turnout amounted to over 60% of the votes cast.

For a lawyer you don't seem to pay much attention to detail Beasty; I said in my last that "These issues are being addressed and should be resolved to the benefit of the internet community we serve".

This "community" notion needs to be scotched. The "community" is limited to those with sufficient commercial interest to pay to belong. The real stakeholders in the .uk internet community is every person and company in the UK. They should not need to pay £500 to join the club.

Uh? Well now you're just jerking my chain! This is a complete nonsense. You say the community is limited to those with sufficient commerical interest to pay to belong. Here's a shock horror moment; nothing is free; except perhaps the air you breathe, and watch some politican put a tax on that eventually! However, taking your proposition to its logical conclusion (and I trust you get the subtlety); if I had sufficient commercial interest I could be part of the lawyer community, or part of the doctor community, or part of the MP community? Not everybody aspires to be that kind of 'part of the whole', but at least in the wider stakeholder communities I see no-one as more worthy or less worthy than anyone else. Being part of any community costs money and in direct correlation to the internet community that could be from the few quid a "user registrant" pays to register and then host a domain name, to the £400 + Vat (there you go missing that detail again) to become a member of Nominet, to the thousands and hundreds of thousands needed to become a hosting company or ISP.

What are you suggesting? That everything should be free? Would that include your lawyer fees? Well, here's the news. Free is worth what you pay for it, and cheap is what it says it is on the tin. Membership of Nominet is costed on a cost recovery basis, in terms of how much it costs to set up the account and for ongoing administration. The actual annual recurring cost of membership goes down to £100 + Vat so you are misrepresenting the facts again. By the by, I doubt any legal firm would offer their services on a cost recovery basis but who knows; wilder things have happened at sea!

One WHOIS database - a controlled list of competing regsistrars who offer competitive terms (including whether their clients want ADR or not) to consumers. Think BT and unbundling the local loop; or other utilities with one central supply. Or give it to the Patent Office and let us all own it - as we should.

Do you mean "who offer competitive terms to consumers and businesses" because businesses are not consumers in English Law are they? And having myself looked at the Patent Office thing, may I respectfully suggest you study it again because IMHO it is not the 'one size fits all' solution you appear to think it is.

Neither does the Expert once it has been sent to the parties. The term "Decision" is clearly defined in the DRS Policy. The Policy/Procedure does not cater for "revised" Decisions. The Decision - as sent to the parties and as defined in the DRS - should have stood unaltered. Those are the rules in black and white.

I will bow to your legal opinion on that point, except to say what I have always said. One can only work within a given system and try to change it from within. I don't know if I am more cynical or less cynical than you, but I do know that one of us is trying to change things for the better and you are simply talking technicalities; which reminds me of the proposed change in "unsafe convictions" heralded yesterday and how the courts will be instructed to be less inclined to technicalities when quoshing convictions, and more inclined to "the facts". The fact in the specific case (I think) you are referring to is that the 'technicality' would not have changed the outcome. Why then argue the technicality? If you really must, re-argue the case, but on its merits; not on some obscure notion of principle which is the stuff lawyers (and politicians) sacrifice to expediency anyway.

It seems we've gotten to the point where everybody's got a right and nobody's got a responsibility, and being part of any community is about the latter, as well as the former.

Regards
James Conaghan
http://www.conaghan.me.uk
[email protected]

 

[Jac]

Who did write the DRS ?

A legal team.


Regards
James Conaghan
http://www.conaghan.me.uk
[email protected]

 

[EdPhillips]

Who did write the DRS ?

Nominet lawyers, essentially. I'll most likely be writing the revisions for the next update, as I did with the last.

While I have a moment to post, I'll just pick up on a couple of other things:

1. The purpose of having abuse at the time of registration or later use is actually one of the key features of the DRS and was deliberate. I have heard WIPO say that if they had the opportunity to change the UDRP, that is one the of the changes they would make - of course, they don't have that option as the the UDRP is under the control of ICANN who have other things to worry about. As an example of a case where abuse through use is clearly relevant, take the case where an ISP registers a domain name for a client in their own name. At the time of registration this may not be abuse - but it may become abusive when the ISP does something nasty with it during a later argument between the parties.

2. Time of rights: If you think that there is a specific problem with the timing of rights, please contribute to the public consultation later this year - I'd be interested in dealing with those points as they are the sort of potentially dry technical point that most consultees don't get involved in but which can seriously alter the system.

3. I confirm that I don't think the DRS is an arbitration. Quite apart from the dry technical argument, I haven't heard any explanations from anyone why it would be better if it was (one effect would be that it would be harder to go do court, and harder to appeal decisions, for instance). I'm a bit confused why *not* going to court would be fairer (or are you saying that the courts are worse than the DRS...which I'd be oddly encouraged by?).

4. The "4000 words for complainants, 2000 for respondents" thing. I've explained many times why this isn't quite as bad as people keep making out, but I'm also keenly aware that it comes up a lot in questionaire responses and these sorts of discussions and I assure you that it is on the list of things to review in the DRS...

5. I do think you can have a totally fair adversarial system - but it may be impossible to have any system that actually decides anything which leaves everyone happy all of the time. A rather different thing, obviously.

6. The DRS is designed to be fair. If there are specific elements of what it does that you perceive to be unfair (e.g. point 4 above) please submit them to the consultation later this year. One thing about the DRS is that we can and do update it - we created this version in 2001, updated it in 2004, and as I've been on record in several places to say, we plan to update it in 2006/7. This is something that the UDRP does not do - and it fails to help a lot of people because it is written so narrowly.

7. The UDRP's extra 'hurdle' - of proving no rights are held by the registrant, is a somewhat bogus test, but more importantly is still part of the DRS, but simply scooped up into the abusive registration test - one of the ways that you show that it is not an abusive registration is by showing your rights.

8. Setting the bar lower - this is a general policy point, but the UDRP is designed (narrowly) to help companies with trade marks. The DRS is designed to help a wider range of people from the community who have been disadvantaged by registrations, and this is reflected by our higher-complaints-per-domain-on-the-register ratio than for the UDRP. The question for general consideration is therefore seeking to deal with a broader range of 'bad' activities, rather than just narrowly trade mark infringement, is the right thing to do (cue: public discussion, PAB, etc.)

 

[retired member 1]

This looks like an extremely interesting thread, I might sit down and read it when I have a day or two spare

 

[Jac]

This looks like an extremely interesting thread, I might sit down and read it when I have a day or two spare

Only a day or two? It took me four to write mine! :twisted:

Regards
James Conaghan
http://www.conaghan.me.uk
[email protected]

 

[Beasty]

Tellingly? A bit condescending of you old boy considering I have taken the time to offer my opinion. Lawyer or not, that's all either of us has got, our opinion; and even legal opinion is subject to opposing opinion at times, but then you already know what The Law is, don't you?

Not condecending - simply that you asked for evidence/examples - I raised some, and after you first of all accused me of peddling hearsay, you then chose not to address them. I'd say that was telling - nothing more meant by it than that.

As it happens, I think this particular bit of the DRS is wrong too, but that's only my opinion. I also think £3k for 3 experts (at appeal stage) doesn't equate when I can get one for £750 but that's only my opinion. And there are other 'bits 'n bobs' (that's a legal expression) I am not particularly happy with either; but please take note of what I said in my last; that the DRS is currently under review and the wider stakeholder communities will have a chance to see any proposals, changes or modifications, in the resulting consultation document. If you feel strongly about the issues, you can respond to the consultation, as can anyone.

We agree!!! :mrgreen: I shall respond to the consultation - I'd be even happier if Nominet actually consulted all of the people who have contracts with it and pay the fees that keep it going, rather than (as in the past) restrict things to the members and the IP lawyers.

Nominet is in constant dialogue with many consumer, government, and trade bodies, including the OFT, DTI and the Home Office. All these matters (monopoly, competition law, etc) have been discussed at great length and I'm sure they will be again.

The only reference I have found from the OFT refers to the .scot second level domain - and is far less clear cut on the wider issues than you seem to think. Until a proper, formal complaint is filed with the OFT then it would be better to reserve judgment on their views - unless you know something specific that is not in the public domain. Maybe I should make a FOIA application to the OFT, since of course I can't do that of Nominet!

For a lawyer you don't seem to pay much attention to detail Beasty; I said in my last that "These issues are being addressed and should be resolved to the benefit of the internet community we serve".

But at the moment the Big 3 control things. Unless and until you can get them to reduce their power. That is a matter of fact, as demonstrated by the EGM. I don't doubt there may be people at Nominet and the PAB who want it changed - but as the EGM (mercifully) showed, it's not a done deal until the ink is dry.

Uh? Well now you're just jerking my chain! This is a complete nonsense. You say the community is limited to those with sufficient commerical interest to pay to belong. Here's a shock horror moment; nothing is free; except perhaps the air you breathe, and watch some politican put a tax on that eventually! However, taking your proposition to its logical conclusion (and I trust you get the subtlety); if I had sufficient commercial interest I could be part of the lawyer community, or part of the doctor community, or part of the MP community? Not everybody aspires to be that kind of 'part of the whole', but at least in the wider stakeholder communities I see no-one as more worthy or less worthy than anyone else. Being part of any community costs money and in direct correlation to the internet community that could be from the few quid a "user registrant" pays to register and then host a domain name, to the £400 + Vat (there you go missing that detail again) to become a member of Nominet, to the thousands and hundreds of thousands needed to become a hosting company or ISP.

What are you suggesting? That everything should be free? Would that include your lawyer fees? Well, here's the news. Free is worth what you pay for it, and cheap is what it says it is on the tin. Membership of Nominet is costed on a cost recovery basis, in terms of how much it costs to set up the account and for ongoing administration. The actual annual recurring cost of membership goes down to £100 + Vat so you are misrepresenting the facts again. By the by, I doubt any legal firm would offer their services on a cost recovery basis but who knows; wilder things have happened at sea!

Nominet says "paying a one-off joining fee of £400 (plus VAT). There is also an annual subscription charge of £100 (plus VAT) to retain your membership." and "if you join after 1 February are entitled to a 50% reduction in the annual subscription charge element (for the year of joining only) to £50 (plus VAT).". I took that to mean a payment of £400 plus £100 (or reduced to £50) in year 1 - followed by £100 a year - plus VAT of course. So £500 in year 1. My mistake if I read it wrong - but then maybe it is not worded too clearly on the site.

I'm not quite sure what you are getting at regarding the professions. Yes, individuals have to pay to belong; and for that matter achieve certain qualifications. But each community is controlled by direct legislation from government; and certainly the law is under scrutiny at the moment with regard to alleged abusive monopoly rights.

I don't pay directly to have equal priced access and equal say in the Patent register, the TM regsiter, Companies House databse, the Land Regsitry etc. They are national assets, controlled by independent government agencies under the wing of the DTI or whoever - and controlled by direct legislation. I pay for my share of these assets in my tax bill and I excercise my control at the ballot box, by contacting the approriate governemnt officials or elected members, and by direct consultation that is open to all.

I don't need to pay seperately for this right - it seems one does if one wants a direct say in how the UK's internet is run. I don't think this is right - you do. Fair enough. However I think the examples I have just given show that it is possible to get a properly run system within government without limiting influence to those who have sufficient commercial interest to pay to do so. What's more they pay (by and large) to make money out registering domains - so control vests in fact in the hands of a particular interst group.

Do you mean "who offer competitive terms to consumers and businesses" because businesses are not consumers in English Law are they? And having myself looked at the Patent Office thing, may I respectfully suggest you study it again because IMHO it is not the 'one size fits all' solution you appear to think it is.

I chose the word consumers from the compeition law perspective. Obviously both individuals and businesses register .uk domains.

I will bow to your legal opinion on that point, except to say what I have always said. One can only work within a given system and try to change it from within. I don't know if I am more cynical or less cynical than you, but I do know that one of us is trying to change things for the better and you are simply talking technicalities; which reminds me of the proposed change in "unsafe convictions" heralded yesterday and how the courts will be instructed to be less inclined to technicalities when quoshing convictions, and more inclined to "the facts". The fact in the specific case (I think) you are referring to is that the 'technicality' would not have changed the outcome. Why then argue the technicality? If you really must, re-argue the case, but on its merits; not on some obscure notion of principle which is the stuff lawyers (and politicians) sacrifice to expediency anyway.

It seems we've gotten to the point where everybody's got a right and nobody's got a responsibility, and being part of any community is about the latter, as well as the former.

I was pointing out that DRS Policy 8(a) says that nominet "will communicate a Decision to the Parties..." - and once that is done I can see no provision for re-writing the Decision. So it was that flawed Decision that should have been reviewed by Nominet - it was not an invitation to spot a mistake that (from what I recall from Mr Cheese) resulted in a non-sensical and direct contradiction in the Decision. Nominet asked the Expert to re-draft ("correct a typo") and the offending contradicary sentence was removed. Where is the power to do that? Would the same re-writing have been done if a litiguous Complainant with deep pockets had made a similar complaint and the error had been the other way round?

You see I don't want to get bogged down in technicalities. I think the thing needs knocking down and starting again - with a wholly different brief to the one that seems to have been applied.

My first choice, as you know, is for Nominet to be replaced by a government agency and to follow the TM registry approach to objections to marks, followed by an appeal system that has fixed costs and rolls up into the Courts only if really necessary.

If taking the existing system as the starting point, in my view an Alternative (not Additional as the DRS now is) Dispute Resolution system should be in place; retaining the excellent mediation function (but at an earlier stage), accepting that it is a form of Arbitration and so requiring a Complainant to relinquish most of its rights to go to Court should it fail at the ADR; and expressly limiting its brief to genuine cybersquatting cases, not engaging in detailed dispute handling - for which the UK Courts do a perfectly decent job.

Not a technical point - not a tinkering - a root and branch change.

 

[Jac]

We agree!!! I shall respond to the consultation - I'd be even happier if Nominet actually consulted all of the people who have contracts with it and pay the fees that keep it going, rather than (as in the past) restrict things to the members and the IP lawyers.

There I was starting to like you again and then you go and get ludicrously subjective once more! Read my lips; Nominet does consult all of the people who have contracts with it. They do it through public consultations, press releases, Nominet News, and the thousands of emails and telephone calls they get everyday from stakeholders with varying problems. They also do it through regular registrant surveys; the latest is here:

I'd also say the vast majority of these problems do not originate from Nominet itself but from tag holders, ISPs, Hosting Companies, Domainers, Dropcatchers and general misinformation in the marketplace. Through all of these problems the one constant is Nominet's customer service. So they do consult and they do care, and they do not restrict things to just members and IP lawyers, they try to communicate with and help everybody who needs it.

If an organisation is doing all it reasonably can to live up to its mission statement I'd say it deserves some praise, especially in a world of "Bodgit & Legitt" where nobody gives much of a damn anymore about customer service (or community for that matter)! You only have to look at some of the other AD threads (about ISPs) to get an idea of what people think about certain ISPs and their lack of customer service.

As an aside, it might be nice if just once, everybody stopped criticising every blessed thing and gave some credit where it is due (and forgive me if I don't hold my breath).

The only reference I have found from the OFT refers to the .scot second level domain - and is far less clear cut on the wider issues than you seem to think. Until a proper, formal complaint is filed with the OFT then it would be better to reserve judgment on their views - unless you know something specific that is not in the public domain. Maybe I should make a FOIA application to the OFT, since of course I can't do that of Nominet!

Are you sure you're a lawyer? Where's all that attention to detail I thought was a prerequisite of the legal trade? There has already been a proper formal investigation by the OFT following a formal complaint. The OFT duly investigated and concluded that "the revised SLD policy rules and procedures will not in themselves discriminate against applications to operate new SLDs within the .uk top level domain" and that "the OFTs concerns have been addressed". By the by, this information is indeed in the public domain but as IANAL (and don't earn the big bucks) I would suggest that those who are, do their own research. A FOIA application won't be necessary guv!

I'm not quite sure what you are getting at regarding the professions.

I am not getting at anything. I was simply explaining that depending on the professional community one wishes to join (eg: lawyers, doctors, MPs) there is always some kind of financial commitment before joining and nothing (even if it says it is) is for free!

Yes, individuals have to pay to belong; and for that matter achieve certain qualifications. But each community is controlled by direct legislation from government; and certainly the law is under scrutiny at the moment with regard to alleged abusive monopoly rights.

Sorry to be pedantic but each community is only controlled by direct legislation from government in as much as company law, consumer law, or other relevant legislation might apply (eg: health and safety) but each professional or non-professional community is autonomous in that it exists to serve whosoever it chooses.

I don't pay directly to have equal priced access and equal say in the Patent register, the TM regsiter, Companies House databse, the Land Regsitry etc. They are national assets, controlled by independent government agencies under the wing of the DTI or whoever - and controlled by direct legislation. I pay for my share of these assets in my tax bill and I excercise my control at the ballot box, by contacting the approriate governemnt officials or elected members, and by direct consultation that is open to all.

As you point out, we do indeed pay indirectly via taxation, but not all national assets are free nor is the right of admission free. You don't, for instance, get a free ticket to Buckingham Palace or Hampton Court or the British Musem. You can't simply lump national assets together like this; it doesn't equate.

I don't need to pay seperately for this right - it seems one does if one wants a direct say in how the UK's internet is run. I don't think this is right - you do. Fair enough.

I don't necessarily think it is right, but I do think it is justifiable. However; let's take your point to its logical conclusion. There are about 80 million people in the UK. Where does the control and direct say begin and end? Do you want chaos or an efficiently run registry? Even in Socialism there is a hierarchy; someone has to take responsibility for the day to day decisions if for no other reason than people like to have someone to blame. Ever since its inception in 1996 Nominet has openly stated that anyone with an interest in the internet can become a member. Membership has a price because Nominet has to cover its costs. Nominet also states openly that it runs the .uk top level domain in the interests of all stakeholders and any stakeholder can contact the registry at any time. Many of them do, on a daily basis. Seems like a "direct say" to me but if you want an even more direct one become a member. But herein endth the myth; because being a member doesn't automatically give you any more say than being a registrant.

However I think the examples I have just given show that it is possible to get a properly run system within government without limiting influence to those who have sufficient commercial interest to pay to do so. What's more they pay (by and large) to make money out registering domains - so control vests in fact in the hands of a particular interst group.

I think I have just shown why your examples are flawed. Your comment about making money out of registering domains is flawed too. Many Tag Holders use domain names as a loss leader and even sell below the price they buy at from Nominet to entice registrants (aka stakeholders) to buy their value added services; but this is simply market forces at play just as they might be in the legal profession or 'contracted out' government services. The only vested control in Nominet's case has been criticised for years (the voting structure) and as I keep saying, this is being addressed.

You see I don't want to get bogged down in technicalities.

Well, you've got me fooled! ;-)

My first choice, as you know, is for Nominet to be replaced by a government agency and to follow the TM registry approach to objections to marks, followed by an appeal system that has fixed costs and rolls up into the Courts only if really necessary.

I think I've covered this but just to reiterate, when I look at the NHS, CSA, Social Services and other government run agencies, I see inefficiency; and I don't blame the staff for this; I blame Government and its overzealousness in terms of bureaucracy.

If taking the existing system as the starting point, in my view an Alternative (not Additional as the DRS now is) Dispute Resolution system should be in place; retaining the excellent mediation function (but at an earlier stage), accepting that it is a form of Arbitration and so requiring a Complainant to relinquish most of its rights to go to Court should it fail at the ADR; and expressly limiting its brief to genuine cybersquatting cases, not engaging in detailed dispute handling - for which the UK Courts do a perfectly decent job.

Not a technical point - not a tinkering - a root and branch change.

I'm all for making things fair and equitable for all but with so many opinions around, both the PAB and Nominet have to find a compromise somewhere in the middle. I look forward to seeing your response to the consultation document.

Regards
James Conaghan
http://www.conaghan.me.uk
[email protected]

 

[Beasty]

There I was starting to like you again and then you go and get ludicrously subjective once more! Read my lips; Nominet does consult all of the people who have contracts with it. They do it through public consultations, press releases, Nominet News, and the thousands of emails and telephone calls they get everyday from stakeholders with varying problems. They also do it through regular registrant surveys; the latest is here:

I'd also say the vast majority of these problems do not originate from Nominet itself but from tag holders, ISPs, Hosting Companies, Domainers, Dropcatchers and general misinformation in the marketplace. Through all of these problems the one constant is Nominet's customer service. So they do consult and they do care, and they do not restrict things to just members and IP lawyers, they try to communicate with and help everybody who needs it.

If an organisation is doing all it reasonably can to live up to its mission statement I'd say it deserves some praise, especially in a world of "Bodgit & Legitt" where nobody gives much of a damn anymore about customer service (or community for that matter)! You only have to look at some of the other AD threads (about ISPs) to get an idea of what people think about certain ISPs and their lack of customer service.

As an aside, it might be nice if just once, everybody stopped criticising every blessed thing and gave some credit where it is due (and forgive me if I don't hold my breath).

I agree that my experience with Nominet staff has generally been very pleasant.

They don't email all registrants when they are about to change/consult on the terms of the contract though. Why not? It would also be useful to highlight any out of date email addresses.

Are you sure you're a lawyer? Where's all that attention to detail I thought was a prerequisite of the legal trade? There has already been a proper formal investigation by the OFT following a formal complaint. The OFT duly investigated and concluded that "the revised SLD policy rules and procedures will not in themselves discriminate against applications to operate new SLDs within the .uk top level domain" and that "the OFTs concerns have been addressed". By the by, this information is indeed in the public domain but as IANAL (and don't earn the big bucks) I would suggest that those who are, do their own research. A FOIA application won't be necessary guv!

The key words there are "revised" and "SLD" (OK - it's really an acronymn!).

Here's the full published report :

http://www.oft.gov.uk/nr/rdonlyres/39da216d-b356-4893-802b-b00241a4bdf8/0/april2003.pdf

Note the comments on the question of dominance in the market; and in particular that Nominet had to change the SLD rules to avoid further investigation. I is worth adding that this was limited to SLD Rules - not Nominet's overall position, the .uk rules or anything else. That, and what they told me subsequently, is if you like detail. It is also context.

I am not getting at anything. I was simply explaining that depending on the professional community one wishes to join (eg: lawyers, doctors, MPs) there is always some kind of financial commitment before joining and nothing (even if it says it is) is for free!



Sorry to be pedantic but each community is only controlled by direct legislation from government in as much as company law, consumer law, or other relevant legislation might apply (eg: health and safety) but each professional or non-professional community is autonomous in that it exists to serve whosoever it chooses.

Not so. The Solicitors Act is an example of direct legislation by government. I don't have time to look it up, but you'll find similar things giving the medics their charter and so on. Even Homeopaths (apologies to any who may be reading!) have direct legislation governing them.

As you point out, we do indeed pay indirectly via taxation, but not all national assets are free nor is the right of admission free. You don't, for instance, get a free ticket to Buckingham Palace or Hampton Court or the British Musem. You can't simply lump national assets together like this; it doesn't equate.



I don't necessarily think it is right, but I do think it is justifiable. However; let's take your point to its logical conclusion. There are about 80 million people in the UK. Where does the control and direct say begin and end? Do you want chaos or an efficiently run registry? Even in Socialism there is a hierarchy; someone has to take responsibility for the day to day decisions if for no other reason than people like to have someone to blame. Ever since its inception in 1996 Nominet has openly stated that anyone with an interest in the internet can become a member. Membership has a price because Nominet has to cover its costs. Nominet also states openly that it runs the .uk top level domain in the interests of all stakeholders and any stakeholder can contact the registry at any time. Many of them do, on a daily basis. Seems like a "direct say" to me but if you want an even more direct one become a member. But herein endth the myth; because being a member doesn't automatically give you any more say than being a registrant.

The direct say only occurs if you are a member of a private company. No one else has any rights to control it. That may have been OK 10 years ago (I don't think it was but I understand why it came about) - it certainly is not acceptable now when the Internet is an essential part of the fabric of society.

And Nominet more than covers its costs - it makes a profit, it pays over the odds to its executives and it wants to spread its wings and enter new markets. It does not need £500 plus VAT upfront (is it 500 or 400 in year 1 by the way?) from people to "cover its costs" of allowing them to have a direct say in how .uk is run.

I think I have just shown why your examples are flawed. Your comment about making money out of registering domains is flawed too. Many Tag Holders use domain names as a loss leader and even sell below the price they buy at from Nominet to entice registrants (aka stakeholders) to buy their value added services; but this is simply market forces at play just as they might be in the legal profession or 'contracted out' government services. The only vested control in Nominet's case has been criticised for years (the voting structure) and as I keep saying, this is being addressed.

I presume that the ISPs are in it to make money - so beyond that I can not comment. If they use registration to make money another way - so what, it's still making money. The money for all of this is only coming from one place - the registrants - yet they have no direct say in how things are run. In fact, those who make most money out of the registrants perversely end up gaining the greatest control, while making money!

As for what you say about changes to the voting structure - if it is the same people who c*cked up what should have been a stage managed EGM who are now trying to persuade the "turkeys to vote for Christmas"; then I wouldn't hold my breath.

Well, you've got me fooled! ;-)

I'm saying that the rules say its the first Decision that is sent out that should be the subject of the complaint - not a re-written version, which may be more convenient. To me that not technicality, it simple justice. I'm sorry if someone on the PAB doesn't undertand that. You are Nominet's de facto non-exec directors and you guys should be all over this like a rash.

I think I've covered this but just to reiterate, when I look at the NHS, CSA, Social Services and other government run agencies, I see inefficiency; and I don't blame the staff for this; I blame Government and its overzealousness in terms of bureaucracy.



I'm all for making things fair and equitable for all but with so many opinions around, both the PAB and Nominet have to find a compromise somewhere in the middle. I look forward to seeing your response to the consultation document.

Patent Office, Land Registry, Companies House - remind me what's wrong with them...they are a bit closer to the mark than the emotive and irrelevant choices you made.

Have a nice weekend!

 

[Jac]

I agree that my experience with Nominet staff has generally been very pleasant.

mmmm... a bit muted, but I'm sure Nominet's staff will appreciate it.

They don't email all registrants when they are about to change/consult on the terms of the contract though. Why not? It would also be useful to highlight any out of date email addresses.

On your first point (emailing millions of registrants). Whilst this is entirely possible, what would your objective be? Efficiency? Proportional representation? Or chaos? In terms of direct mail, you could end up with something like a 1% response ratio. For the sake of the exercise, let's assume a registrant level of 4 million; you'd end up with 40,000 people trying to contact Nominet in one way or another. If this happens all at once, you've probably gridlocked the registry and every other stakeholder with every other problem suffers too! Let's make it more reasonable. Let's say they don't try to contact the registry all at once but over a 20 working day period; it's still 2,000 people a day. So, what is your objective in insisting the registry emails everybody? Chaos? Or is your penchant to ask the same question in different guises devoid of any responsibility to think about the answers too? It's easy to criticise for the sake of it.

On your second point (out of date email addresses). Everytime a .uk domain name is registered, a Letter of Confirmation is sent to the registrant. In this letter they get a security code which allows them to log-on to Registrants Online here. The purpose of this facility is to give registrants an efficient and secure way of checking and confirming their registration and contact details. Theoretically this should make the necessity of highlighting "out of date email addresses" obsolete; but in reality, it doesn't. No system is perfect and there's no accounting for OP (my affectionate term for 'other people'). And that is where your penchant to seek perfection falls down; OP. This is highlighted in the fact that the WHOIS database still contains wrong information that was given to Nominet by OP in the first instance and never corrected by them for whatever obscure reason. The point is, you cannot account for nor control OP because there are just too many variables; and life and business (and even ethics) are about reasonable expectations, not unreasonable ones!

The key words there are "revised" and "SLD" (OK - it's really an acronymn!).

Here's the full published report :
http://www.oft.gov.uk/nr/rdonlyres/39da216d-b356-4893-802b-b00241a4bdf8/0/april2003.pdf

Note the comments on the question of dominance in the market; and in particular that Nominet had to change the SLD rules to avoid further investigation. I is worth adding that this was limited to SLD Rules - not Nominet's overall position, the .uk rules or anything else. That, and what they told me subsequently, is if you like detail. It is also context.

So now you are outguessing the OFT too? <sigh> The fact is, the OFT found no wrongdoing and quashed the dominance question anyway. Get over yourself Beasty, this is not the Spanish Inquisition; you missed it by 174 years!

Not so. The Solicitors Act is an example of direct legislation by government. I don't have time to look it up, but you'll find similar things giving the medics their charter and so on. Even Homeopaths (apologies to any who may be reading!) have direct legislation governing them.

So what? Are you suggesting we live in a totalitarian state? That nobody gets to choose their own destiny or direction, personally, commercially, or ethically?

The direct say only occurs if you are a member of a private company. No one else has any rights to control it. That may have been OK 10 years ago (I don't think it was but I understand why it came about) - it certainly is not acceptable now when the Internet is an essential part of the fabric of society.

You are entitled to think it is not acceptable, but just thinking it, does not make it so. Acceptable and consensus go hand in hand (unless you really do believe in totalitarianism)? I would defend your right to your opinion, but you have no basis for suggesting consensus, because the relevant stakeholder communities have not been consulted or asked for theirs.

And Nominet more than covers its costs - it makes a profit, it pays over the odds to its executives and it wants to spread its wings and enter new markets. It does not need £500 plus VAT upfront (is it 500 or 400 in year 1 by the way?) from people to "cover its costs" of allowing them to have a direct say in how .uk is run.

I presume that the ISPs are in it to make money - so beyond that I can not comment. If they use registration to make money another way - so what, it's still making money. The money for all of this is only coming from one place - the registrants - yet they have no direct say in how things are run. In fact, those who make most money out of the registrants perversely end up gaining the greatest control, while making money!

You are still confusing (or muddling) two separate issues; the UK Registry and the UK Internet. (Try telling BT or Pipex that you want a direct say in how they run things!) ISPs are of course in it to make money, so are lawyers, doctors, and every other professional sector, but that does not detract from their right to self-determination in their own commercial environment. Nominet is a private company limited by guarantee; but you continue to misrepresent it as a national treasure. Metaphorically speaking it may be arguable, but the reality is, it is a legal entity bound by company law. Even so it does indeed give every stakeholder the chance to confer, respond, or otherwise make their voice heard. It's up to them how they wish to achieve that, through individual effort, by being a member, or by lobbying the PAB or Nominet's board. They are free to choose.

That said, the .uk namespace and/or UK Internet is not a national treasure, it is part of a global means of communication. It does not belong to you, me, or the registrant community, anymore than it belongs to Nominet; yet you continue to argue this affected and subjective viewpoint.

As for what you say about changes to the voting structure - if it is the same people who c*cked up what should have been a stage managed EGM who are now trying to persuade the "turkeys to vote for Christmas"; then I wouldn't hold my breath.

The man who says it can't be done is liable to be interrupted by someone doing it. <Cue for joke> Q. How do you stop a lawyer drowning? A. Take your foot off his head. (Holding breath is optional.)

I'm saying that the rules say its the first Decision that is sent out that should be the subject of the complaint - not a re-written version, which may be more convenient. To me that not technicality, it simple justice. I'm sorry if someone on the PAB doesn't undertand that. You are Nominet's de facto non-exec directors and you guys should be all over this like a rash.

Now you are confusing separate issues again. The DRS and the PAB. That aside, this someone on the PAB quite obviously understands it better than you. For starters, we are not Nominet's de facto non-executive directors. Where do you get that bizarre idea from? The PAB is not employed by Nominet; the 8 elected PAB members are elected by the Membership to represent the wider stakeholder community's views and provide feedback and recommendations to the board. The 8 appointed members (including APIG, DTI, CBI, FSB etc) are not de facto non-executives either. (See info at bottom.) I keep saying it but you keep ignoring it: facts do not cease to exist because they are ignored, and further to that, they do not cease to exist because they are misrepresented either. Please get your facts right.

Patent Office, Land Registry, Companies House - remind me what's wrong with them...they are a bit closer to the mark than the emotive and irrelevant choices you made.

Well, you can gibe all you want but it still doesn't make you any more right than you were yesterday. That aside, you are talking horses for courses; though your reference to "emotive and irrelevant choices" is completely unwarranted. Any suggestions I have made are presented in the interests of the wider community; the only emotion is in how passionately I believe in their interests.

In direct reference to Companies House; they were very helpful to Nominet in the early days but decided to step down (as an appointed member) at the last PAB meeting. They felt their original advisory role was no longer relevant. I don't think we've ever had a representative from the Patent Office but we do have a representative from the Institute of Trade Mark Attorneys. Whilst his role may vary, I'd say he is reasonably astute in matters of patent, he certainly seems to be. So, when talking "closer to the mark", I'd say the PAB is a lot more representative of the wider communities than any of the organisations you cite. I'd also suggest the comparison between them and Nominet and/or the DRS is not relevant. But that's only my opinion.

For information:

APIG = All Party Parliamentary Internet Group
DTI = Department of Trade and Industry
CBI = Confederation of British Industry
FSB = Federation of Small Businesses

The PAB also comprises representatives from The Cabinet Office, Institute of Trademark Attorneys, Information Commissioners Office and the Oxford Internet Institute.

Regards
James Conaghan
http://www.conaghan.me.uk
[email protected]

 

[Beasty]

On your first point (emailing millions of registrants). Whilst this is entirely possible, what would your objective be? Efficiency? Proportional representation? Or chaos? In terms of direct mail, you could end up with something like a 1% response ratio. For the sake of the exercise, let's assume a registrant level of 4 million; you'd end up with 40,000 people trying to contact Nominet in one way or another. If this happens all at once, you've probably gridlocked the registry and every other stakeholder with every other problem suffers too! Let's make it more reasonable. Let's say they don't try to contact the registry all at once but over a 20 working day period; it's still 2,000 people a day. So, what is your objective in insisting the registry emails everybody? Chaos? Or is your penchant to ask the same question in different guises devoid of any responsibility to think about the answers too? It's easy to criticise for the sake of it.

I fail to see what is wrong with getting thousands of responses - which might be tailored by offering some sort of poll options or the like. Your electoin page seems to suggest that you like the idea too -

"I would like to see more education of registrants to promote awareness of Nominet and who it actually is within the 3 way relationship between registrant, registrar & registry."​

But now you seem to be saying a large active registrant base (or even a small percentage of active registrants) would make the registry grind to a halt.

So now you are outguessing the OFT too? <sigh> The fact is, the OFT found no wrongdoing and quashed the dominance question anyway. Get over yourself Beasty, this is not the Spanish Inquisition; you missed it by 174 years!

No - I'm saying the .scot investigation ended when the SLD rules were changed in consultation with the OFT. It explicitly left the dominance question open - so did the people running it when I contacted them. They were quite explicit that this did not give Nominet as a whole a clean bill of health - the wider questions had not been addressed.

I quote directly:

"it appears Nominet may have a dominant position in relation to the supply of .uk names. However it was not necessary for the OFT to take a definitive view on market definition in this case."​

So what? Are you suggesting we live in a totalitarian state? That nobody gets to choose their own destiny or direction, personally, commercially, or ethically?

You suggested that other "professional" bodies were governed only by general commercial and other law. I pointed out that this simply was not so - there is specific control over specialist areas. I don't understand why this suggests any form of totalitarianism.

You are entitled to think it is not acceptable, but just thinking it, does not make it so. Acceptable and consensus go hand in hand (unless you really do believe in totalitarianism)? I would defend your right to your opinion, but you have no basis for suggesting consensus, because the relevant stakeholder communities have not been consulted or asked for theirs.



You are still confusing (or muddling) two separate issues; the UK Registry and the UK Internet. (Try telling BT or Pipex that you want a direct say in how they run things!) ISPs are of course in it to make money, so are lawyers, doctors, and every other professional sector, but that does not detract from their right to self-determination in their own commercial environment. Nominet is a private company limited by guarantee; but you continue to misrepresent it as a national treasure. Metaphorically speaking it may be arguable, but the reality is, it is a legal entity bound by company law. Even so it does indeed give every stakeholder the chance to confer, respond, or otherwise make their voice heard. It's up to them how they wish to achieve that, through individual effort, by being a member, or by lobbying the PAB or Nominet's board. They are free to choose.

That said, the .uk namespace and/or UK Internet is not a national treasure, it is part of a global means of communication. It does not belong to you, me, or the registrant community, anymore than it belongs to Nominet; yet you continue to argue this affected and subjective viewpoint.

We differ on who the stakeholder community should be. I accept that it is currently the Nominet membership - but I argue that it should be (at the very least) the Registrant Community as a whole, if not simppy the Community/Society as a whole. Nobody owns the Patent Office or Companies House or the Land Registry - or if anyone does, we all do. In my view it is simply no longer tenable for a small group of individuals/businesses to own the .uk Registry. You disagree. In due course it will need to be tested by someone with greater power than either of us.

.uk namespace is the UK's part of a global network. It is not a National Treasure - but I thik it should be a National Asset. You think it should continue to be a privately owned asset - acquired by default 10 years ago. Again, I think in due course someone else will have to decide which view is correct.

The man who says it can't be done is liable to be interrupted by someone doing it. <Cue for joke> Q. How do you stop a lawyer drowning? A. Take your foot off his head. (Holding breath is optional.)

I think it can be done - the Government could take .uk away from Nominet by passing direct legislation on the point. If we are hoping that businesses who have a duty to their own shareholders will voluntarily relinquish a potentially valuable asset - and the people who plan to do it are the same ones who wasted a lot of money on a misconceived and mismanaged EGM - then I hope you are right and I am wrong.

Now you are confusing separate issues again. The DRS and the PAB. That aside, this someone on the PAB quite obviously understands it better than you. For starters, we are not Nominet's de facto non-executive directors. Where do you get that bizarre idea from? The PAB is not employed by Nominet; the 8 elected PAB members are elected by the Membership to represent the wider stakeholder community's views and provide feedback and recommendations to the board. The 8 appointed members (including APIG, DTI, CBI, FSB etc) are not de facto non-executives either. (See info at bottom.) I keep saying it but you keep ignoring it: facts do not cease to exist because they are ignored, and further to that, they do not cease to exist because they are misrepresented either. Please get your facts right.

Non-executive directors are not employees of the company that they are non-execs of - that's the point. One of their duties, if done properly, is to look after the interests of the shareholders if and when they may conflict with the executive directors.

That is what I thought that was one of the things that the PAB were meant to do within Nominet - represent the Members in relation to keeping an eye on the Executive Board.

So - when the Executive refer a DRS Decision to be substantively revised by the Expert without any apparent authority to do so under the DRS rules - what is the view of the PAB? Or what is the view of one PAB member when asked a direct question. Not about the Decision itself or the specific merits of the case - but on the point of principle that neither the Executive (when receiving a Complaint from Mr Cheese) nor the Expert (when shown the contradictory nature of the Decision) has behaved properly within the DRS Rules that Nominet iteself wrote. I invite you to say whether you think it was dealt with properly within the rules or not.

 

[Beasty]

Well, you can gibe all you want but it still doesn't make you any more right than you were yesterday. That aside, you are talking horses for courses; though your reference to "emotive and irrelevant choices" is completely unwarranted. Any suggestions I have made are presented in the interests of the wider community; the only emotion is in how passionately I believe in their interests.

In direct reference to Companies House; they were very helpful to Nominet in the early days but decided to step down (as an appointed member) at the last PAB meeting. They felt their original advisory role was no longer relevant. I don't think we've ever had a representative from the Patent Office but we do have a representative from the Institute of Trade Mark Attorneys. Whilst his role may vary, I'd say he is reasonably astute in matters of patent, he certainly seems to be. So, when talking "closer to the mark", I'd say the PAB is a lot more representative of the wider communities than any of the organisations you cite. I'd also suggest the comparison between them and Nominet and/or the DRS is not relevant. But that's only my opinion.

For information:

APIG = All Party Parliamentary Internet Group
DTI = Department of Trade and Industry
CBI = Confederation of British Industry
FSB = Federation of Small Businesses

The PAB also comprises representatives from The Cabinet Office, Institute of Trademark Attorneys, Information Commissioners Office and the Oxford Internet Institute.

Horses for courses was my point. The Patent Office etc. manage very similar (if rather more coplex) databases and related IP rights to the one Nominet controls. They use an executive agency model that IMO works very well. Hence they are more relevant than other parts of Government that evoke high emotion and carry out very different functions - such as the NHS and the CSA.

BTW - was I right when reading the first year fee for Nominet membership as £500 - or is it only the £400 joining fee without an annual £100 in year 1 on top, as you said?

 

[Beasty]

I don't think we've ever had a representative from the Patent Office but we do have a representative from the Institute of Trade Mark Attorneys. Whilst his role may vary, I'd say he is reasonably astute in matters of patent, he certainly seems to be. So, when talking "closer to the mark", I'd say the PAB is a lot more representative of the wider communities than any of the organisations you cite. I'd also suggest the comparison between them and Nominet and/or the DRS is not relevant. But that's only my opinion.

Sorry - struggling with the quotes thing today.

That's sort of my point. The Institute of Trade Mark Attorneys don't own the Patent Office - or even the Trade Mark Registry part of it. Converely Nominet - and with it .uk - is owned by the ISPs. The contrast is stark. You think the latter is better - I don't. I think an independent agency owned by the Government is better - and I suggest that Government is more representative than the PAB of the wider community.

 

[Jay Daley]

They don't email all registrants when they are about to change/consult on the terms of the contract though. Why not? It would also be useful to highlight any out of date email addresses.

Our most relevant experience of mass emailing is the reminders we send to registrants when we a domain has passed renewal date. This already leads to a huge volume of queries, some complaints and spam reports. The sad fact is that not enough of them actually know who we are and what our relationship with them is.

Given this experience, if we did email all registrants, then on a practical front alone it is likely the most notable impact would be to firmly establish a reputation for us as a spammer.

 

[Jay Daley]

BTW - was I right when reading the first year fee for Nominet membership as £500 - or is it only the £400 joining fee without an annual £100 in year 1 on top, as you said?

Yes. First year is £400 joining fee plus £100 annual subscription, so £500. Subsequent years are £100.

 

[bb99]

The scores so far

By my reckoning, it's currently "Advantage Beasty" with Jac to serve for the next point...

 

[Jay Daley]

Converely Nominet - and with it .uk - is owned by the ISPs. The contrast is stark.

Not quite. Nominet is owned by the members, which is a remarkably broad church. It includes ISPs, hosting companies (there is a significant difference), IT companies, web development companies, law firms, government bodies, general companies and so on.

I think an independent agency owned by the Government is better - and I suggest that Government is more representative than the PAB of the wider community.

From experience (of working in Government) I would say that Government is not really representative of anything at all, except Government, because it is simply too big and too inward looking. Some branches might represent some other stakeholders but even then only through the looking glass of Government policy.

The PAB on the other hand has representation from our industry, civil society and governement.

 

[Jack_the_hat]

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