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.sucks “gagging” registrar critics?

Kevin Murphy, January 12, 2016, 16:26:10 (UTC), Domain Registries

.sucks may be all about freedom of speech, but some registrars reckon the registry is trying to ban them from criticizing the new gTLD in public.

Vox Populi is proposing a change to its standard registrar contract that some say is an attempt to gag them.

A version of the Registry-Registrar Agreement dated December 18, seen by DI, contains the new section 2.1:

The purpose of this Agreement is to permit and promote the registration of domain names in the Vox Populi TLDs and to allow Registrar to offer the registration of the Vox Populi TLDs in partnership with Vox Populi. Neither party shall take action to frustrate or impair the purpose of this Agreement.

It’s broad and somewhat vague, but some registrars are reading it like a gagging order.

While many retail registrars are no doubt happy to sell .sucks domains as part of their catalogs, there is of course a subset of the registrar market that focuses on brand protection.

Brand protection registrars have been quite vocal in their criticism of .sucks.

MarkMonitor, for example, last year wrote about how it would refuse to make a profit on .sucks names, and was not keen on promoting the TLD to its clients.

Asked about the new RRA language, Vox Pop CEO John Berard told DI that it was merely an attempt to clarify the agreement but provided no additional detail.

Registrars are also angry about a second substantial change to the contract, which would allow the registry to unilaterally make binding changes to the deal at will.

The new text in section 8.4 reads:

Vox Populi shall have the right, at any time and from time to time, to amend any or all terms and conditions of this Agreement. Any such amendment shall be binding and effective 15 days after Vox Populi gives notice of such amendment to the Registrar by email.

That’s the kind of thing that ICANN sometimes gets away with, but some registrars are saying that such a change would let Vox Pop do whatever the hell it likes and would therefore be legally unenforceable.

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Comments (14)

  1. “some registrars are reading it like a gagging order”

    From the “question mark headline” to the “some people say” assertions of fact, it’s kind of hard to make out what it is that is a “gagging order” here. One gathers least two unspecified people are reading it that way.

    A contract clause saying that the parties are bound to not frustrating the purpose of the contract is controversial? Really? It seems that the sort of person who would object to a clause like that in a contract is someone who has an itch to undermine the purpose of the contract at some point, or at least wants to feel free to do so.

    Surprisingly, people don’t generally like to do business with others who are doing so for the purpose of undermining the business. Would you hire someone to work on your blog, whose intention is to damage your blog?

    Registrar pro-tip: If you don’t like a TLD, don’t carry it.

    “Registrars are also angry…” All of them? Most of them? Or, at least two of them? How many were asked?

    “such a change would let Vox Pop do whatever the hell it likes and would therefore be legally unenforceable”

    Where a contract doesn’t bind a party to any particular obligation, or where a party can alter the obligations at will then, in general, the contract fails through lack of mutuality of obligation.

    But, it is also generally true that even a small obligation will suffice. For example, if our contract says “you agree that I can impose new obligations or do whatever I want at any time” then, sure, that’s not a contract which states any definite obligation. But if the contract says, “I have to give you 15 days notice of any changes I want, and if you don’t like those changes then I have to allow you to terminate the contract”, that’s a very different situation. I’m not allowed to do whatever I want at any time, because I’m obligated to 15 days of forbearance of whatever it is, and I’m also obligated to allow you to get out of the contract, in exchange for being able to propose changes.

    While only a part of the contract is quoted here, is the registrar entitled to terminate the contract during those 15 days if they don’t agree to the changes?

    Or was that part omitted from whatever all of the registrars have been sending you?

    What are the registrar’s options if they do not agree to the changes within that 15 days?

    Without that detail then the opinion that the contract would be unenforceable sounds like what you’d hear from someone who just barely passed first semester contracts.

    I hope none of them use Apple devices or the Itunes service…

    “Apple reserves the right at any time to modify this Agreement and to impose new or additional terms or conditions on your use of the Apple Music Service. Such modifications and additional terms and conditions will be effective immediately and incorporated into this Agreement. Your continued use of the Apple Music Service will be deemed acceptance thereof.”

    …since Apple doesn’t even provide 15 days!

    • Kevin Murphy says:

      John,

      I certainly wouldn’t hire somebody to work for DI if it was their purpose to undermine and criticize DI.

      I am quite happy to allow my comments section to be used for that purpose, however.

      Kevin

  2. Rubens Kuhl says:

    ICANN’s registry agreement requires changes to RRA be either be deemed non-material by ICANN or, if deemed material, requires Registrar Stakeholder group approval. So clauses allowing the registry to change RRA at will are likely not enforceable, unless the point is to avoid a single registrar from preventing a change, notably a registrar with different views from the RrSG voting members.

    • Reg says:

      Yes, but, in practice, ICANN sends all RRA changes to the RrSG to approve, whether material or not (ICANN doesn’t want to be the arbiter of what is or is not material—or the arbiter of anything, really). I don’t know if the RrSG has ever actually made use of their presumptive ability to reject changes, or what ICANN would do if the RrSG did reject the changes (ICANN doesn’t really have the power to force a registry to have or provide a contract it doesn’t want to). So it will be interesting to watch.

      • Correct. It appears that gTLD registry agreements generally acknowledge that material changes need ICANN approval, and it’s not as if a registry can contract out of the requisite ICANN approval. The way a quick sample of registries address this point is:

        Neustar .biz: ” In the event that revisions to Registry Operator’s approved form of Registry-Registrar Agreement are approved or adopted by ICANN, Registrar will either execute an amendment substituting the revised agreement in place of this Agreement or, at its option exercised within fifteen days after receiving notice of such amendment, terminate this Agreement immediately by giving written notice to Registry Operator. In the event that Registry Operator does not receive such executed amendment or notice of termination from Registrar within such fifteen day period, Registrar shall be deemed to have terminated this Agreement effective immediately.”

        Afilias .info: “In the event that revisions to Afilias’ approved form of Registry-Registrar Agreement are approved or adopted by ICANN, Registrar will either execute an amendment substituting the revised agreement in place of this Agreement or, at its option exercised within fifteen (15) days after receiving notice of such amendment, terminate this Agreement immediately by giving written notice to Afilias. In the event that Afilias does not receive such executed amendment or notice of termination from Registrar within such fifteen day period, Registrar shall be deemed to have terminated this Agreement effective immediately.”

        M&M .horse: “In the event that revisions to the Registry’s Registry Registrar Agreement are approved or adopted by ICANN, the Registrar shall have thirty (30) days from the date of notice of any such revision…”

        The only significant difference in the language is the absence of mentioning that ICANN approval is required for material amendments.

        • Kevin Murphy says:

          Is that significant difference important?

          • I’m trying to think of why it might be important.

            I could offer you a $100 flight ticket and say:

            “Kevin, for $100 I will fly you from Philadelphia to New York.”

            Or I could say:

            “Kevin, if the Federal Aviation Authority licenses me to operate an aircraft, then for $100 I will fly you from Philadelphia to New York.”

            Is there a practical difference between those two things? Because absent an FAA license, I’m not going to fly you anywhere.

  3. Bret Fausett says:

    “Neither party shall take action to frustrate or impair the purpose of this Agreement.”

    How is that even remotely controversial? This is generally an implied term in every contract, whether it’s specified like this or not. Search for “implied covenant of good faith and fair dealing.”

    This is just saying out loud what the law already required.

    • It’s not this sentence that is controversial, it’s a sentense a bit further in section 3.2, stating that neither party shall “take any action that could interfere with Vox Populi to provide domain name registrations in the Vox Populi TLDs.” This is a one-direction clause.

      • To reply to myself: this might be a killer for competition if VoxPop will be their own registrar. Does this, for example, mean that we are not allowed to do any marketing efforts on .sucks because that attracts customers to *us* that otherwise may have gone to VoxPop? Does this mean that we are not allowed to sell at a price lower than VoxPop’s price, as that “interferes” with their business?

        This clause is far too vague to be in a contract like this.

        • Rubens Kuhl says:

          The registry legal entity can’t be a registrar, so unless the contract specifies something more generic like “economic group”, a vertically-integrated registrar couldn’t make use of this clause.

          • Reg says:

            Yes, but it can own a registrar or be under common ownership with one, which could, arguably, make it the registry’s business that is affected by the sale of domains by another registrar. “Any action that could interfere” is super broad and could conceivably be used as Jeff fears. I’m not convinced it would be, but that doesn’t mean the fights not an interesting or a good one.

    • Jeff Neuman says:

      Bret, if as you say it is implied, then why put it in there. Obviously there is a reason that Vox Populi wants in there. Would love to see the explanation for why they deem it necessary. My hunch is so they have an express right under the agreement to terminate registrars (and collect breach of contract damages) that in their view say negative things about their TLD. It is also worth noting that Vox Populli has a right to impose graduated sanctions if a registrar breaches the agreement which generally do not apply to the implied covenant of good faith.

  4. I don’t see any gagging in the clause quoted, .sucks still remains vital for free speech. I only hope that freedom is not abused.

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