EU prior rights

[Beasty]

It exists in any business/ organisation etc etc I agree it is a multi dimensional financial analysis, however, forcasting and coralating between the variables is easy to model. Given that nominets revenues and profits have fluctuated over the last four year period, but, considering total domains registered at an all time high, it would be unlikely that a marginal change in the short term would cause significant and irreparable damage to the company (just to the rep of the decision makers)...

I agree - I think it would take something spectacular to cause a big drop in .uk domain registrations.

 

[grandin]

sounds good but

beasty said:- However, it is not correct to say that merely selling something to a potential infringer avoids liability. If one does that, one can become a joint tortfeaser with the other party. It is logical, since the sale gives the seller a benefit - which exists only as a result of the planned infringment.

I say:- I do not disagree BUT given the contract is so flawed and vast in length then is the remedy Transfer to the complainant (who does not have any more rights than another) the correct remedy?

I reckon the drs is all too quick to punish inexperienced domain name purchasers............generic domain names are catched by big corporates on the back of mistakes by the domain name holder.....thats the problem.

BOUNCE transferred to the Complainant.....maybe the shopping channel is a bit close and may not help the owner but who is going on the web to look up washing powder....

who has bought mints on the web??? polo

who would go to polo.eu if looking for a car............I would try auto trader

.......polo.eu........most usable option is the sport.......but it is non trading and has no trade mark

Bounce.co.uk as a generic word to a business like my business would be worth £5k. So what damage has been caused to the bounce brand by the domain name owner having a shopping channel.....how many were going on the web looking for washing powder....was it £5k's worth?

Lee

 

[Jac]

Firstly, if you are mandated not to make a profit - then stop making a profit when you have a cash pile of about £6 million in the bank. Should not be too hard.

This is a short-term phenomenon which goes directly back to my "spreadsheet from hell" reply earlier.

However the Nominet Exec wants to be free to make more profit if the EGM resolutions were anything to go by - they even wanted to be able to put prices UP more easily.

You have the UP bit completely wrong. What Nominet wanted to do was have the ability to (timeously) changes prices DOWN or UP as their 'not for profit' status required. Currently they cannot change prices without asking the membership and currently they can't even make the price lower so they can get rid of the reserve. Suffice to say this, and other issues, are currently under review (as you already know).

Secondly, the core function of maintaining a domain registry when most of the data comes to you from TAG holders is not that tough.

Maybe I missed it, but when was the last time you ran a domain name registry? So how would you know if it's tough or not?

It's an understandable point of view - but misses the point of what is Nominet? Is it a simple monopoly providing a "social" function? Or is it a great opportuity to expand and develop - based on a sure fire winner of a reputation, with cash in the bank and more guaranteed each year? Or is it something else?

A lot of what you ask are valid questions Beasty, but you are missing vital points in the possible future history of Nominet; and this is just speculation on my part. As you seem so adept at it yerself, I thought I'd reciprocate.

This 'sure fire winner' analogy you use is illogical when you consider the board of Nominet (at least the non-excutive majority) changes every 2 years. Your argument seems to suggest (and let's call it hypothetical) that some kind of personal wealth creation might be the reason why Nominet is seeking this "great opportunity" to expand and develop. It can take at least 2 years in any business to realise a profit on a new opportunity, and the non-executives would (theoretically) already be deposed. Where's the gain? Also, in 5 or 10 years time domain names may not exist as we know them Jim, and it would be remiss of any board; who have a legal responsibility to act wisely; not to plan ahead to ensure the continued viability of their company.

I would therefore suggest the answer to Nominet's quest for 'expansion and development' is to keep itself liquid so it can be around in 2, 5, or 10 years time, to service the registrants who depend on it for their domain name service.

That's why I am concerned about salaries etc.. Not what they are, but rather the mentality that I think they exemplify. I'll take a closer look at Companies House and a few big charities tonight (when I'm not working!) - so will take a rain check on those detailed comparisions you make until later.

I don't mean this offensively Beasty, but what right do you or I have to be concerned about what salaries Nominet pays its directors and staff? It is a private company limited by guarantee, not the civil service. Its only 'crime' seems to be that it chose to regard everybody who uses a .uk domain name as a stakeholder. It seems kind of ironic (to me anyway) that when a company sets itself up as an open and transparent community service, that the community should attack everything it tries to do on the basis that there must be an ulterior motive for everything it does. By all means ask questions and criticise, but where's the merit in continually looking for conspiracy theories?

Regards
James Conaghan

 

[sneezycheese]

Beasty you seem to be switched on with this ip law (which I am not....all i do is follow common sense).

So Beasty.....if you read through the Nominet Dispute Resolution Policy it states

'3. Evidence of Abusive Registration

a. A non-exhaustive list of factors which may be evidence that the Domain Name is an Abusive Registration is as follows:'

ie. 3a of the policy uses the word may! So if the average domain name owner is not to rely on what is written in the policy then what has he got to rely on? Does he have to read through all the previous drs cases to find out that 3aia of the policy was incorrectly stated? if so then the contract is over 3 million words long.....if the contract is over 3 million words long do you think that person could claim that the Nominet contract as an unfair contract?

Hypothetical of course
Lee

given the contract is so flawed and vast in length then is the remedy Transfer to the complainant (who does not have any more rights than another) the correct remedy?

I reckon the drs is all too quick to punish inexperienced domain name purchasers............generic domain names are catched by big corporates on the back of mistakes by the domain name holder.....thats the problem.

...What you've raised here has reminded me of something, direct from nominet:

"The contract is now in plain English and we have a Plain English Campaign Crystal Mark award for it."

...You couldn't make this sort of stuff up. Gives a lot of credence to that award, doesn't it?

...At this point, words to decribe what I'm feeling at this moment fail me.

 

[Beasty]

I don't mean this offensively Beasty, but what right do you or I have to be concerned about what salaries Nominet pays its directors and staff? It is a private company limited by guarantee, not the civil service. Its only 'crime' seems to be that it chose to regard everybody who uses a .uk domain name as a stakeholder. It seems kind of ironic (to me anyway) that when a company sets itself up as an open and transparent community service, that the community should attack everything it tries to do on the basis that there must be an ulterior motive for everything it does. By all means ask questions and criticise, but where's the merit in continually looking for conspiracy theories?

This is the central difference we have JAC. Of course a private company can pay its staff whatever it wants and can afford. A public company - which is nearer to what Nominet is in terms of the breadth of membership - has a few more restrictions. In practice though, if the members are happy with their returns, they are likely to be happy with what the execs are being paid. In a competitive world, if you pay out too much in costs and don't get a return on it - you'll be swallowed up by the competition.

However, if like me you think that Nominet is a de facto (and should be a facto) "civil" service, then I think I am entitled to question people's salary scales. There is no competition - so the company model does not hold good. The money that Nominet gets it gets purely and simply because it holds a monopoly. The customers are therefore obliged to foot the bill - but at present have no say (in their capacity as a customer) on how it is spent or how the business is run. That's because there is fundamental conflict between the needs of a private company and the provision of a monoply utility service.

You will never accept that .uk domains should be provided by a public service monopoly - or alternatively should be opened up to competition. I will never accept that a private company should enjoy what I see as a uniquely priveleged monopoly position. Such is life - but I don't think there's much point in continuing to try to persuade the other to change their minds.

 

[olebean]

Jac

Where's the gain?

Interesting quote when you suggested that success and development of Nominet and remuneration to Dr Black are intrinsically linked!

That is just one instance of personal gain...

Please don't even suggest that last years profit etc was a one off 2001 had greater profit and turnover.....

This reply is not about the money, but about a potential false interpretation of figures....

 

[Jac]

This is the central difference we have JAC.

You and me got differences? Perish the thought!

Of course a private company can pay its staff whatever it wants and can afford. A public company - which is nearer to what Nominet is in terms of the breadth of membership - has a few more restrictions.

Er... IANAL and all that; but there is no legal precedent for even suggesting that Nominet is a public company or a public service. Conversely, on the 8th May 2005 it was accepted by the High Court that Nominet was not a public authority and the case against it was thrown out.

In practice though, if the members are happy with their returns, they are likely to be happy with what the execs are being paid. In a competitive world, if you pay out too much in costs and don't get a return on it - you'll be swallowed up by the competition.

I don't think you quite appreciate the standing of Nominet in a global sense. This is not some tuppence halfpenny company that does no good, it is a company that is respected internationally, even to being invited onto the UN's IGF. What the execs are paid is up to the company. Me? I'm just jealous! What are you?

However, if like me you think that Nominet is a de facto (and should be a facto) "civil" service, then I think I am entitled to question people's salary scales.

The High Court apparently disagrees with your de facto "civil" service comparison. I try to deal in facts but people keep ignoring them.

There is no competition - so the company model does not hold good. The money that Nominet gets it gets purely and simply because it holds a monopoly. The customers are therefore obliged to foot the bill - but at present have no say (in their capacity as a customer) on how it is spent or how the business is run. That's because there is fundamental conflict between the needs of a private company and the provision of a monoply utility service.

This is all pure conjecture Beasty. The same kind of conjecture that led to the High Court case I mentioned above; the one where the HIgh Court accepted the argument that Nominet was not a public authority. In the past the human rights act 1998 has also been thrown at Nominet and its legitimacy has been called into question. It is still here and you're still arguing the same old legitimacy arguments that have already been settled in the past.

You will never accept that .uk domains should be provided by a public service monopoly - or alternatively should be opened up to competition.

What I will never accept is an argument based on hypothesis with no iota of merit in the argument. Give me a tangible reason why a public service (as in government agency type) would be better than a motivated private company acting in the interests of all of us, and I'll fall in line behind you to fight the good fight. But you're giving me nothing but arguments that won't stand up in court (see above).

I will never accept that a private company should enjoy what I see as a uniquely priveleged monopoly position. Such is life - but I don't think there's much point in continuing to try to persuade the other to change their minds.

If you will never accept what Nominet is, then you have to apply the same logic to Versign, EURID, Afilias, PIR et al... because you cannot single out Nomient simply because you live in the UK and you think it's your right. Rights do not exist without responsibility, so be responsible for the things you say, which amount to no more than allegations and conjecture. If they were based on fact (or even law) I'd be more inclined to stand on your side of the argument but I see no facts in your arguments.

Sorry to be vociferous again but facts are facts; de facto or not.

Regards
James Conaghan

 

[Jac]

This is the central difference we have JAC.

You and me got differences? Perish the thought!

Of course a private company can pay its staff whatever it wants and can afford. A public company - which is nearer to what Nominet is in terms of the breadth of membership - has a few more restrictions.

Er... IANAL and all that; but there is no legal precedent for even suggesting that Nominet is a public company or a public service. Conversely, on the 8th May 2005 it was accepted by the High Court that Nominet was not a public authority and the case against it was thrown out.

In practice though, if the members are happy with their returns, they are likely to be happy with what the execs are being paid. In a competitive world, if you pay out too much in costs and don't get a return on it - you'll be swallowed up by the competition.

I don't think you quite appreciate the standing of Nominet in a global sense. This is not some tuppence halfpenny company that does no good, it is a company that is respected internationally, even to being invited onto the UN's IGF. What the execs are paid is up to the company. Me? I'm just jealous! What are you?

However, if like me you think that Nominet is a de facto (and should be a facto) "civil" service, then I think I am entitled to question people's salary scales.

The High Court apparently disagrees with your de facto "civil" service comparison. I try to deal in facts but people keep ignoring them.

There is no competition - so the company model does not hold good. The money that Nominet gets it gets purely and simply because it holds a monopoly. The customers are therefore obliged to foot the bill - but at present have no say (in their capacity as a customer) on how it is spent or how the business is run. That's because there is fundamental conflict between the needs of a private company and the provision of a monoply utility service.

This is all pure conjecture Beasty. The same kind of conjecture that led to the High Court case I mentioned above; the one where the HIgh Court accepted the argument that Nominet was not a public authority. In the past the human rights act 1998 has also been thrown at Nominet and its legitimacy has been called into question. It is still here and you're still arguing the same old legitimacy arguments that have already been settled in the past.

You will never accept that .uk domains should be provided by a public service monopoly - or alternatively should be opened up to competition.

How do you know what I will and won't accept? I have changed my mind on bigger issues than this when the evidence has proved me wrong. However, what I find difficult to accept is an argument based on supposition with no supporting evidence to prove the argument. Give me a tangible reason why a public service (as in government agency type) would be better than a motivated private company acting in the interests of all of us, and I'll fall in line to fight the cause; but you're giving me nothing but arguments that won't stand up in court (see above).

I will never accept that a private company should enjoy what I see as a uniquely priveleged monopoly position. Such is life - but I don't think there's much point in continuing to try to persuade the other to change their minds.

If you will never accept what Nominet is, then you have to apply the same logic to Versign, EURID, Afilias, PIR et al... because you cannot single out Nominet simply because you live in the UK and you think it's your right. Rights do not exist without responsibility, so be responsible for the things you say, which amount to no more than allegations and conjecture. If they were based on fact (or even law) I'd be more inclined to stand on your side of the argument but I see no facts in your arguments.

Sorry to be vociferous again but facts are facts; de facto or not.

Regards
James Conaghan

 

[olebean]

If you will never accept what Nominet is, then you have to apply the same logic to Versign, EURID, Afilias, PIR et al

Regards
James Conaghan

Maybe that would be a good idea :-D

 

[Jac]

Maybe that would be a good idea :-D

LOL.... maybe it would olebean... but I think the rest of the world might have summat to say about us sticking our nose in their business. Can you imagine taking on the Chinese registry!?

Regards
James Conaghan

 

[olebean]

LOL.... maybe it would olebean... but I think the rest of the world might have summat to say about us sticking our nose in their business. Can you imagine taking on the Chinese registry!?

Regards
James Conaghan

sylvester stallone did if that old man can I am pretty positive a few reprobates cladded in leather and covered in baby oil could do a job

 

[Jac]

Interesting quote when you suggested that success and development of Nominet and remuneration to Dr Black are intrinsically linked!

That is just one instance of personal gain...

Well, I suppose if you regard remuneration/salary as personal gain, you may have a point; but as I keep saying, it is up to each and every private company what they pay their directors and staff. "Personal" gain infers something dodgy and a limited company has to act within the law.

Regards
James Conaghan

 

[olebean]

Well, I suppose if you regard remuneration/salary as personal gain, you may have a point; but as I keep saying, it is up to each and every private company what they pay their directors and staff. "Personal" gain infers something dodgy and a limited company has to act within the law.

Regards
James Conaghan

I agree it could be construed like that, which would be wrong.... Oh, and a company "Should" act within the law not all do, not all directors get brought before courts etc either..

 

[Beasty]

Er... IANAL and all that; but there is no legal precedent for even suggesting that Nominet is a public company or a public service. Conversely, on the 8th May 2005 it was accepted by the High Court that Nominet was not a public authority and the case against it was thrown out.





The High Court apparently disagrees with your de facto "civil" service comparison. I try to deal in facts but people keep ignoring them.



This is all pure conjecture Beasty. The same kind of conjecture that led to the High Court case I mentioned above; the one where the HIgh Court accepted the argument that Nominet was not a public authority. In the past the human rights act 1998 has also been thrown at Nominet and its legitimacy has been called into question. It is still here and you're still arguing the same old legitimacy arguments that have already been settled in the past.

Which case was this?

 

[Jac]

Which case was this?

It was itunes. Ben Cohen (the respondent/complainant) sought judicial review of the DRS transfer decision. Nominet argued (albeit a point of law) that is was not subject to the oversight of the High Court because it is not a public authority. Cyberbritain (Mr Cohen's company) disagreed, arguing that Nominet has a monopoly on the management of .uk domain names; that its functions are public in nature; and that the internet is a public service. At the time of filing the application for judicial review, Mr Cohen acknowledged that an appeal to Nominet was possible but he refused to use it. The judge threw out his case.

Nominet is acknowledged by the UK Government as the manager of the .uk domain and is in regular contact with the government. Whilst there may be no official agreement between Nominet and the Government there are various crown/civil servants from the DTI, OIC, Cabinet Office and House of Lords sitting on the Policy Advisory Board, so the government is well represented at all levels. Personally, I believe Nominet acknowledges its responsibility to the UK and the UK Internet Community (and indeed the global communities) otherwise it might have set itself up as a for profit entity (like Verisign) and we'd all be arguing from a different perspective now.

Regards
James Conaghan

 

[grandin]

upfront

jac you wrote: Nominet is acknowledged by the UK Government as the manager of the .uk domain and is in regular contact with the government. Whilst there may be no official agreement between Nominet and the Government there are various crown/civil servants from the DTI, OIC, Cabinet Office and House of Lords sitting on the Policy Advisory Board, so the government is well represented at all levels.

Interesting comment.....what I presume the PAB want is hard to implement given the current structure within Nominet.

Votes, Votes, Votes....if I had to get my staff to vote for all my changes I think I would sell out and move on.....what can Nominet actually do without gaining Votes from members?

Lee

 

[Beasty]

It was itunes. Ben Cohen (the respondent/complainant) sought judicial review of the DRS transfer decision. Nominet argued (albeit a point of law) that is was not subject to the oversight of the High Court because it is not a public authority. Cyberbritain (Mr Cohen's company) disagreed, arguing that Nominet has a monopoly on the management of .uk domain names; that its functions are public in nature; and that the internet is a public service. At the time of filing the application for judicial review, Mr Cohen acknowledged that an appeal to Nominet was possible but he refused to use it. The judge threw out his case.

Nominet is acknowledged by the UK Government as the manager of the .uk domain and is in regular contact with the government. Whilst there may be no official agreement between Nominet and the Government there are various crown/civil servants from the DTI, OIC, Cabinet Office and House of Lords sitting on the Policy Advisory Board, so the government is well represented at all levels. Personally, I believe Nominet acknowledges its responsibility to the UK and the UK Internet Community (and indeed the global communities) otherwise it might have set itself up as a for profit entity (like Verisign) and we'd all be arguing from a different perspective now.

Regards
James Conaghan

JAC - I hope you can help me with the itunes case.

I have not found a copy of the decision - although it is an High Court (Administrative Division) Decision - and so ought to be on BAILII and so on. Reports of the decision seem to suggest - if read carefully - that the Application was dismissed because it was brought before all DRS appeal procedures had been exhausted and because it was out of time for such an Application.

I have not seen a quote stating that it also said that Nominet was not subject to Judicial Review - in fact some commentators seem to say the opposite. Now I know that if it had proceeded there was going to argument about Nominet's status - but I am less than clear whether it needed to be considered - and much less that it was a victory for Nominet on that point. Here are the repected IPKat's reports on the case:

http://ipkitten.blogspot.com/2005/10/stephen-stewart-lecture-and-failed.html

http://ipkitten.blogspot.com/2005/11/out-of-tune.html

You'll see the quote from Ed Phillips seems far more qualified in the second part - more repeating the Nominet argument, but not saying that that was what the Court held.

If you have a copy of the Judgment, perhaps you could put us all out of our misery and let us have sight of it. It's not on the Nominet site where Court cases involving them are listed.

 

[texidriver]

.......currently they can't even make the price lower so they can get rid of the reserve.

I know, I know, it is so hard, I thunk and thunk and but could only suggest,

burn it !

....what can Nominet actually do without gaining Votes from members?
Lee

I think they could pay the PAB/ execs what they want.

let us ask Mr jealous

 

[Beasty]

I think they could pay the PAB/ execs what they want.

let us ask Mr jealous

:lol:, I could :cry:

 

[gordon]

Firstly, if you are mandated not to make a profit - then stop making a profit when you have a cash pile of about £6 million in the bank. Should not be too hard. However the Nominet Exec wants to be free to make more profit if the EGM resolutions were anything to go by - they even wanted to be able to put prices UP more easily.

That is not the case. Nominet had no wish to increase the price. Nominet actually put in lots about discounting and special offers into the proposed resolutions because they want granularity of control. A membership vote is a blunt instrument and if you have that and you choose to reduce the price you have to be absolutely confident that when you spot the iceberg ahead there will be enough data that can be made public for the members to agree with your assessment and allow problems to be fixed. Its actually very difficult for the board to recommend a reduction at present (not just the current mechanics of it) but in doing so a board has to be confident of no market downturn on the horizon as they have no means to fix any problems that occur yet they have the legal responsibilities for them. Having extra money is far less of a problem to fix than not having any.

That's why I am concerned about salaries etc.. Not what they are, but rather the mentality that I think they exemplify. I'll take a closer look at Companies House and a few big charities tonight (when I'm not working!) - so will take a rain check on those detailed comparisions you make until later.

Companies house employs more than 1100 staff to manage around 2million registratrions, spending 23.6million on salaries in the last published report, Nominet 130 staff for around 4million registrations, spending 3.8million on salaries in the last published report. If you do comparisons please make sure you use enough data to truly compare the organisations and the roles, responsibilities and efficiencies.

Gordon