Local council loses domain name

[bb99]

Full article here:

http://new.edp24.co.uk/content/news...gory=news&itemid=NOED29 May 2006 16:50:02:423

Shoddy journalism though - it's a .org domain they've lost and yet they have a quote from Nominet which indirectly suggests it's their fault.

If I were the council, I'd be instructing my lawyers against Easyspace - they seem to have pretty much admitted liability. Surely this sort of thing is covered by Easyspace's professional indemnity insurance??

 

[retired_member6]

Considering it's a council I'm sure they have the funds to sue easyspace and get the name back?

 

[retired_member6]

For some reason I don't like easyspace anyway so them being sued might teach 'em a lesson. :mrgreen:

 

[domaingenius]

For some reason I don't like easyspace anyway so them being sued might teach 'em a lesson. :mrgreen:

In fact I used to work as van driver with the guy that started Easyspace not far from me (or indeed from Admin) and had nickname of "fruit bat". Always had that aura about him that knew he would go on to bigger and better things and he did. Sold easyspace for multi millions after only few years.
As for this thing. IF ,and I say if, Easy space did ;
"Easyspace offered the council £135 to buy it back from Neonshark, if it could be traced." then I would say that they have admitted liability indirectly and maybe directly,

DG

 

[Jac]

In fact I used to work as van driver with the guy that started Easyspace not far from me (or indeed from Admin) and had nickname of "fruit bat". Always had that aura about him that knew he would go on to bigger and better things and he did. Sold easyspace for multi millions after only few years.
As for this thing. IF ,and I say if, Easy space did ;
"Easyspace offered the council £135 to buy it back from Neonshark, if it could be traced." then I would say that they have admitted liability indirectly and maybe directly,

DG

Like 'em or loathe 'em, most of these big companies have protection built-in to their Terms and Conditions. Here's a quote from Easyspace's Ts&Cs.

" 3.12 You are solely responsible for ensuring the Services are renewed. WE SHALL HAVE NO LIABILITY TO YOU OR ANY THIRD PARTY IN CONNECTION WITH THE RENEWAL OR ANY ATTEMPT TO RENEW THE SERVICES AS DESCRIBED HEREIN, INCLUDING, BUT NOT LIMITED TO, ANY FAILURE OR ERRORS IN RENEWING OR ATTEMPTING TO RENEW THE SERVICES. The foregoing limitation of liability is in addition to any other limitations of liability set forth in this Agreement. "

At the end of the day (and unpalatable as it may be) the ultimate responsibility for ensuring a domain name is actually renewed lies with the registrant.

Regards
James Conaghan

 

[domaingenius]

Like 'em or loathe 'em, most of these big companies have protection built-in to their Terms and Conditions. Here's a quote from Easyspace's Ts&Cs.

" 3.12 You are solely responsible for ensuring the Services are renewed. WE SHALL HAVE NO LIABILITY TO YOU OR ANY THIRD PARTY IN CONNECTION WITH THE RENEWAL OR ANY ATTEMPT TO RENEW THE SERVICES AS DESCRIBED HEREIN, INCLUDING, BUT NOT LIMITED TO, ANY FAILURE OR ERRORS IN RENEWING OR ATTEMPTING TO RENEW THE SERVICES. The foregoing limitation of liability is in addition to any other limitations of liability set forth in this Agreement. "

At the end of the day (and unpalatable as it may be) the ultimate responsibility for ensuring a domain name is actually renewed lies with the registrant.

Regards
James Conaghan

Ah yes James, but what about the implications of PARTS of the sex.com Judgment made by the Supreme Court in USA. Yes I know the overall case was about different scenario but the implications of parts of the Judgment
on this case are quite large, including the fact that they determined that a domain was indeed "property" and as such warranted the same care and conduct ?. Some parts could easily be used in this claim, or indeed any similar matter. Maybe that the Council will have to look at USA ?.

DG

 

[bb99]

Baah! I was under the impression that you couldn't limit your liability in T&Cs like that. At the end of the day, if you've lost a domain name for a customer then you've lost the name and it was you what did it - bang to rights.

It's completely unreasonable to expect the customer to keep tabs on it - that's what they pay the service provider for.

Maybe someone with a bit more legal knowledge than I could comment?

 

[Jac]

Ah yes James, but what about the implications of PARTS of the sex.com Judgment made by the Supreme Court in USA. Yes I know the overall case was about different scenario but the implications of parts of the Judgment
on this case are quite large, including the fact that they determined that a domain was indeed "property" and as such warranted the same care and conduct ?. Some parts could easily be used in this claim, or indeed any similar matter. Maybe that the Council will have to look at USA ?.

DG

The problem with the sex.com judgment is that courts in different states within the United States seem to find differently. In the sex.com case, a Federal Appellate Court found that a domain name is “property” and that domain name registrars should be held liable for the conduct of 3rd parties when someone interferes with the property interests of a domain name registrant by stealing their domain name.

However, there are federal cases that have expressly found that a domain name is not tangible; as in not real property; and at least one state Supreme Court found that domain names should be considered services rather than property. The Supreme Court of Virginia found that domain names are not proper subjects for "garnishment". IMHO, whilst the law of probabilities may suggest that domain names show features of both tangible and intangible property, the fact is, the scope of a property interest in a domain name varies widely in the United States and different states create and define property interests not Federal courts.

The point is, I don't think any of us can say for certain how A N Other American Court might find in the future. :???:

Regards
James Conaghan

 

[Jac]

Baah! I was under the impression that you couldn't limit your liability in T&Cs like that. At the end of the day, if you've lost a domain name for a customer then you've lost the name and it was you what did it - bang to rights.

I'd say it would depend on the circumstances, and I'd also suggest the reason registrars seek to limit their liability in regard to services like domain name registration/renewal is simply 'cause and effect'. If they can be sued over a 20 or 30 quid domain name which they probably make sod all out of anyway (domain names at registration level are not profit centres, just loss leaders) then why wouldn't they seek to limit their liability?

"The common law of business balance prohibits paying a little and getting a lot. It can't be done". John Ruskin 1819-1900.

It's completely unreasonable to expect the customer to keep tabs on it - that's what they pay the service provider for.

Why is it unreasonable to expect the registrant to keep tabs on their own domain names? They own 'em don't they? Would they treat their car tax or council tax with such disregard?

Regards
James Conaghan

 

[bb99]

Why is it unreasonable to expect the registrant to keep tabs on their own domain names? They own 'em don't they? Would they treat their car tax or council tax with such disregard?

Well you have to put it in context.

We're moving away from the circumstances in the article (not that it gives us the exact circumstances) but if you pay someone to look after your domain name and they say "would you like to renew" and you say "yes" and pay for it and they cash your cheque and tell you it's sorted, then why should you have to double check what they're doing and that it was actually renewed? You're paying them to deal with it for you. They are a reputable company. I put it to you, sir, that it is "unreasonable" to have to do so yourself.

 

[Jac]

Well you have to put it in context.

We're moving away from the circumstances in the article (not that it gives us the exact circumstances) but if you pay someone to look after your domain name and they say "would you like to renew" and you say "yes" and pay for it and they cash your cheque and tell you it's sorted, then why should you have to double check what they're doing and that it was actually renewed? You're paying them to deal with it for you. They are a reputable company. I put it to you, sir, that it is "unreasonable" to have to do so yourself.

I don't disagree with your standpoint monsieur, I'm just giving you another side to the story and suggesting to you that responsibility is like consideration; a two-way street.

Even Nominet say this in their Terms and Conditions; that they "do not have to start any process, including any change to the register, until we (not just your agent) have received (within any time limit) any fee for that action and any other fees that have not been paid for the domain name or things done with it – it is your duty to make sure that we are paid and that there is enough information with the payment to make sure that we know which domain name it relates to".

I have highlighted the words that relate back to the issue of 'who is responsible'. The point is, even if the registrant pays the tag holder and the tag holder omits to pay Nominet (for whatever reason) then Nominet may still hold the registrant responsible for payment and invoice them accordingly. That seems to place the onus on the registrant; at least in the case of .uk names. Tough apples perhaps, but it highlights the need to take responsibility for your own stuff.

IMHO, the issue of responsibility and the registrar's Terms and Conditions (i.e. limits to liability) could well be the crux of this court case if it goes that far... which is why I put it to you sir.

Regards
James Conaghan

 

[Jac]

I hasten to add that most tag holders/registrars do their level best to ensure timeous reminders are sent and renewal requests that are received are acted on; but nobody is infallible and s**t happens. I blame Murphy myself!

Regards
James Conaghan

 

[retired_member6]

I'd say it would depend on the circumstances, and I'd also suggest the reason registrars seek to limit their liability in regard to services like domain name registration/renewal is simply 'cause and effect'. If they can be sued over a 20 or 30 quid domain name which they probably make sod all out of anyway (domain names at registration level are not profit centres, just loss leaders) then why wouldn't they seek to limit their liability?

"The common law of business balance prohibits paying a little and getting a lot. It can't be done". John Ruskin 1819-1900.



Why is it unreasonable to expect the registrant to keep tabs on their own domain names? They own 'em don't they? Would they treat their car tax or council tax with such disregard?

Regards
James Conaghan

JAC, with all due respect you're having a bubble. Some of these companies that Nominet give TAGS to are pony and don't deserve to hold one, they offer services on Nominet's behalf and Nominet should regulate them, simple as.

 

[retired_member6]

I hasten to add that most tag holders/registrars do their level best to ensure timeous reminders are sent and renewal requests that are received are acted on; but nobody is infallible and s**t happens. I blame Murphy myself!

Regards
James Conaghan

It's one thing not taking up a reminder or having account details on file, it's another when the customer pays and the registrar fails to do what he's supposed to do.

One suspects if a millionaire lost a domain worth tens of thousands, that registrar is going to have big problems. They're paid to do a service and terms are all very nice but very rarely mean anything when it comes to the crunch.

Either way, millionaire or laymen, worthless domain or priceless, a registrar should do their job properly and quite frankly even Pipex have been shocking recently and should be fined by Nominet.

 

[retired_member6]

As for the domain in question, there really isn't enough information in the article to truly form a knowledgeable opinion. One presumes the three months passed so there is negligence on the customer's part even though the party felt they'd paid to secure the rental for the next two years by sending a cheque.

Something should have been done in those three months to force the registrar to get the domain back at normal cost and the ensuing fine from Nominet should see it didn't happen again.

 

[domaingenius]

I'd say it would depend on the circumstances, and I'd also suggest the reason registrars seek to limit their liability in regard to services like domain name registration/renewal is simply 'cause and effect'. If they can be sued over a 20 or 30 quid domain name which they probably make sod all out of anyway (domain names at registration level are not profit centres, just loss leaders) then why wouldn't they seek to limit their liability?

"The common law of business balance prohibits paying a little and getting a lot. It can't be done". John Ruskin 1819-1900.



Why is it unreasonable to expect the registrant to keep tabs on their own domain names? They own 'em don't they? Would they treat their car tax or council tax with such disregard?

Regards
James Conaghan

Since this is a relevant time , I would point out that Eurid the .eu registry has, in my opinion sensibly for once, decided that domains will automatically be renewed unless advised to the contrary. I wonder why Nominet dont take up that as well and then it will save a lot of heart ache for people who accidentally lose their names etc ??. Nominet could automaticallly renew, charge the Nominet registrar who put the domain name through and then put the onus on the Registrar to collect the money OR apply for a refund and have the name deleted (making sure at same time perhaps that we do not invite kiting as happens with .com) . Why not ?

DG

 

[Jac]

JAC, with all due respect you're having a bubble. Some of these companies that Nominet give TAGS to are pony and don't deserve to hold one, they offer services on Nominet's behalf and Nominet should regulate them, simple as.

Eh? A bubble? Does that come with squeak?

But Lee, there will always be cowboys in all industries, and whilst even consumer groups will warn that caveat emptor applies, I personally have always been of the belief we should try to raise industry standards to at least minimum levels of expectation. Even then, you will still inevitably get individuals or companies doing a Bodgit & Leggit on their customers; but you can't hold Nominet responsible for the actions of every single tag holder (including any with big black hats and ponies that ride off into the virtual sunset). It isn't Nominet's fault if there are a few bad apples in a very big barrel, just as it isn't ICANN's fault if some of their Top Level Registrars are a tad unscrupulous.

Regards
James Conaghan
[PAB Member]

 

[Jac]

JAC, with all due respect you're having a bubble. Some of these companies that Nominet give TAGS to are pony and don't deserve to hold one, they offer services on Nominet's behalf and Nominet should regulate them, simple as.

Sorry Lee...

I meant to pick up on your point about tag holders offering services on "Nominet's behalf". This is incorrect. Tag holders do not offer services on Nominet's behalf, the tag holder acts as the registrant's agent. That's why the contract of registration is between the registrant and Nominet. The tag holder is not a party to that contract. If tag holders were to offer services on behalf of Nominet there would need to be a whole other registrar agreement in place with stuff like indemnity insurance and the costs might well be prohibitive to individuals and sole traders who might otherwise wish to be tag holders.

Regards
James Conaghan

 

[retired_member6]

Yes the registrar is a reseller but the contract isn't wholly with Nominet as it's the reseller's job to keep the domain in place and well maintained. So someone could argue the above unless if the council's domain fell into Nominet's rule you're willing to leave yourself open to a lawsuit? :mrgreen:

 

[Jac]

It's one thing not taking up a reminder or having account details on file, it's another when the customer pays and the registrar fails to do what he's supposed to do.

In a world where Noddy and Big Ears are playing in the garden and the flowers are flowering and God's in his heaven and all's right with the world, nobody would ever make a mistake, but we do, because we're Human. But now we're into the realms of philosophy and how a thing should be and isn't, and why everyone expects everything for next to nothing but doesn't accept any responsibility, obligation, or duty, in anything much at all. It's kinda like 'the world owes me' territory and if I'm ranting it's only because sometimes a sudden thought strikes me... like... wouldn't it be nice if just once, people stopped constantly saying it's someone else's responsibility and took some of their own. But there you go, that's obviously just Jac being unreasonable again.

One suspects if a millionaire lost a domain worth tens of thousands, that registrar is going to have big problems. They're paid to do a service and terms are all very nice but very rarely mean anything when it comes to the crunch.

Either way, millionaire or laymen, worthless domain or priceless, a registrar should do their job properly and quite frankly even Pipex have been shocking recently and should be fined by Nominet.

Yes, you are absolutely right, registrars and tag holders should do their job properly; but Nominet has no authority to fine a tag holder, nor can it get involved in someone else's business model, and as I said before, tag holders do not act on behalf of Nominet per se, they act as agents on behalf of registrants. I'd say the OFT might have something to say about abuse of a dominant position if Nominet started doing a big brother on tag holders.

Regards
James Conaghan
[In ranting mode]