From: Andrew Young Sent: Friday, 19 October 2007 1:10 PM To: jo.lim@auda.org.au Subject: 2007 Names Policy Panel Draft Recommendations Dear Jo, Following is my response to the 2007 Names Policy Panel Draft Recommendations. Sincerely, Andrew Young 1. Should .au be opened up to direct registrations (eg. domain name.au)? No. There appears to be no compelling reason to do so but many reasons not to. 2. Should the policy rules for asn.au, com.au, id.au, net.au and org.au be changed? Yes. I believe auDA should increase the number of 2LD extensions and base them on industry categories (name.industry.au). Such a domain structure would have many benefits, including: - greatly reducing the number of conflicts - i.e. anz.bank.au, anz.lawyers.au, anz.plumbing.au vs all three vying for anz.com.au - reduce illegal activities such as phishing - e.g. only banks could register .bank.au - future proof the .au namespace - the gTLD namespace is already moving to a similar model (.travel, .museum, etc) - make it easier for the public to remember the domain name as it is based on industry There would be some inertia in moving toward such a model, as such I recommend that auDA begin with the larger industry segments such as .bank.au, .tv.au, etc. There is a serious policy deficiency in that there is no dispute resolution process for disputes between auDA and a registrant. For example, if auDA deletes a domain for what it considers a breach of policy, yet the registrant and/or their lawyers are adamant that their registration and use of the domain adhered to auDA's policies, the only current option is expensive legal action. To avoid such issues, some countries have an independent Domain Name Ombudsman which can handle disputes between the registrant and the registry. I believe such a model would benefit the .au namespace. There is a need for a 2LD that can be openly used by local entities as well as a need for a 2LD that can be openly used by international entities. One possibility is to use the .info.au 2LD for such a purpose, another could be to create new 2LDs such as .int.au (.international.au) or .open.au. To maintain the integrity of the .au namespace it is important that the existing 2LD structure and eligibility criteria is maintained - i.e. the policies which govern the eligibility and allocations of 2LDs such as .com.au, .org.au, etc. I agree with the EFA in their opposition to allow auDA to suspend a domain name without notice at the request of an Australian regulatory or law enforcement agency. A mere request should not be sufficient to take such drastic action but rather a court order or other document of sufficient legal weight should be required. 3. Should registrants be allowed to sell their .au domain names? Yes. It appears that those who oppose such an idea fear that the same level of speculation that has occurred with gTLD domains will happen with .au domains and they seem to be ignoring auDA's other policies such as the eligibility and allocation policy, registrant warranty policy and domain monetisation policy. These three policies place various checks and balances against the registration and use of .au domains, something which does not exist with gTLDs and something which will prevent the same level of speculative activity occurring. Many of those opposed seem to be touting the interests of rights holders, such as trade mark owners. It is worth noting that a trademark can be openly sold and that it is currently easier and cheaper to sell / transfer a trademark than it is a domain name, this is despite the trademark holding far more legal weight than what a domain does. Further to this, a trademark provides an ELIGIBILITY to a domain name it does not provide a RIGHT to a domain name. This is clearly noted in auDA's policies, including paragraph 2.3 of the Domain Name Eligibility and Allocation Policy Rules for the Open 2LDs (2005-01) which states "There is no hierarchy of rights in the DNS. For example, a registered trade mark does not confer any better entitlement to a domain name than a registered business name. Domain name licences are allocated on a ‘first come, first served’ basis. Provided the relevant eligibility rules are satisfied, the first registrant to apply for a particular domain name will be permitted to license it." The key issue is whether or not a registrant is eligible to hold the domain name. If they are eligible then they are just as entitled to use it or sell it as anyone else that has an eligibility to a domain, regardless of whether that eligibility is based on a company name, trademark, business name or any of the other eligibility criteria. If a domain is for sale and it appears that the current registrant does not meet the eligibility criteria to hold that domain, a complaint can be lodged and the domain would be deleted if the registrant was found in breach of auDA's policies. As such, any party that has an interest in a domain that is listed for sale can have the domain removed from any party that has registered it for purely speculative purposes. The most important part of allowing the sale of domain names is the enforcement of auDA's other policies which prevent speculative and untoward activities. In response to the various proposals which have been put forward to restrict the sale of domain names, such as the 6 month waiting period and limiting the number of sales each year, it should be evident that such policies will do more harm to those that are interested in the acquiring the domain that it will to those looking to sell the domain. It would make little difference to a seller as to whether they can sell the domain today or in 6 months time, as they are getting rid of the domain and no longer need it for website purposes, whereas, the interested party will want the domain ASAP so they can begin using it for website / marketing purposes. It should also be evident that there are NUMEROUS ways to get around these two proposed restrictions and as such they would be ineffective. For example, through the use of multiple ABN numbers the registration of domains and subsequent sale of the domains could be spread out. Likewise a registrant could come to an agreement to "lease" or "borrow" the domain to the interested party until the 6 month period was up, then finalise the transfer. I believe the way forward is not to place restrictions on the sale / transfer of the domains but rather to use the other existing policies to ensure the eligibility of the registrant and to prevent speculative behaviour. On a slightly separate note, the sale / transfer of a domain should not need the amount of paperwork and high fees that are currently associated with the existing registrant transfer policy. Likewise any time left on the existing registration should be transferred to the new registrant rather than the current policy of requiring a new two year registration period. The sale / transfer of a domain should be allowed to occur either privately or in an open market. No restrictions should be placed upon the sale / transfer other than the need for both the existing registrant and the proposed new registrant of meeting the eligibility criteria.