Expired Domain Skimming by Registrars

[YAYnames.com]

Every domainer that intends to bid in a dropped domain name auction needs to be aware of the fact that some Registrars by their own admission skim the very best names.

Does that sound outrageous to you? It certainly does to me, but it's true. The funny thing is, they make no bones about it, and are completely unapologetic about it as well.

Not only that, but just because you win an auction and pay for the names at some houses doesn't mean that they won't decide after the auction's closed that they won't hand over the names. I know this sounds crazy, so don't take my word for it. Take a look at these related threads on respected industry leader Michael Berkens' blog that are a MUST READ for anyone participating in any drop auctions.

check this:
http://www.thedomains.com/2008/06/25/tucows-response-to-our-post-not-good-enough-and-heres-why

and this:
http://www.thedomains.com/2008/06/2...alled-out-yesterday-today-we-call-out-tucows/

Tucows recently reached an agreement with Afternic to auction expired names that are registered with them. So, if you plan on bidding on any of these names, you should definitely see the responses in the thread by Bill Sweetman, General Manager of Tucows Domain Portfolio, and understand that what you're bidding on is the crap that Tucows decided they didn't want.

If that doesn't seem right to you, maybe you should let the folks at ICANN know that you're not happy participating in a rigged game where registrars can skim the cream of the crop of expiring domain names.

.

 

[YAYnames.com]

The public comment period for the Registration Accreditation Agreement (RAA) ends August 4th.

Domainers that don't think registrars should be allowed to appropriate expired domains for themselves should let ICANN know it ASAP.

I can tell you that personally, I'm not too worried about Google, Amazon, Microsoft or Name Administration. I'm pretty sure they can take care of themselves, but they must surely appreciate all that love flowing from you and central, LOL.

The argument that registrars should be able to rig the game because "historically" someone always does is both laughable and defeatist.

Fortunately for the average domainer ICANN makes the rules, and they ask for public comment. A lot of people screamed about the 60 day rule, and guess what? It's gone. Registrars may be slow to implement the change, but if they don't, they'll get their accreditation pulled.



And yeah, that does make me feel better.

 

[Premiere]

Personally I think that the current set of violations exceed reasonability. Okay so registrars used to let domains drop, then companies found this drop game to be profitable so they grabbed them. Then registrars said "well let's not lose that revenue", so they put them on hold and used a 3rd part to auction them off, splitting the revenue with the dropcatchers, so to speak.

So now we decide, hey screw that, these domains are worth alot. Let's just keep them and enjoy the PPC.

Well now that doesn't have anything to do with ICANN or TOS or even remotely trying to seperate yourself from the registration. It is blatant and outright violation IMHO. Now obviously there are alot of people here who feel differently so I am guessing I am against the crowd here. But you have to draw a line in the sand and I say this is it. I am not interested in Google is a registrar and buys their own names - let them buy their own names!

If you are the real estate broker for an old house and the owner abandons it, you don't own the property, the government does.
In fact, there are terribly few things in this world that you can keep when you find them. Just about everything must go through a government agency.
If you abandon your 15 year old domain name, the registrar keeps it and doesn't tell anyone?

To redundantly claim that the line is muddled or unclear is not reasonable. From the perspective of the US Civil Courts, brokers own nothing and can hold claim on nothing but their commissions - which they are lucky to get in most abandonment cases.

This is likely to become an issue sooner than later, no matter how many people try to negate this whole thread. I cheer YayNames for bringing it to our attention, even if it quietly vanishes from view for some indeterminate amount of time. It will come back though. I am sure by then many will have made millions. Yaynames will have made, uhm, nothing.

Before you think of replying, think of how much will you make and how much motivation is that for you to counter every statement?

 

[Dave_Z]

A lot of people screamed about the 60 day rule, and guess what? It's gone.

Unfortunately it's not. Search around and you'll find how Go Daddy fixed that,
and Network Solutions (last I heard) reduced their hold period to 30 days but
can be removed.

And no one ever said registrars should be able to "rig the game" just because
history has shown examples of others looking for an edge over others. Aren't
many of us trying to get one over another in some way?

If you are the real estate broker for an old house and the owner abandons it, you don't own the property, the government does.

One reason for that is because it's defined. However, there's a couple of legal
decisions indicating domain names as "creatures of contract", and that same
contract with your registrar defines your responsibilities and relationships.

(And before anyone brings up that sex.com decision saying domain names are
property, it was only decided as such for what it stated. It doesn't say that
domain names are property regardless of circumstances, it doesn't apply to all
jurisdictions, and it's been discussed before why they shouldn't be property.)

Last I checked, it's been an "issue" ever since Network Solutions started the
auction bandwagon. I guess it'll remain an issue, just that it's not given all the
top priority since other priorities are competing.

And I make enough to afford to reply whenever I choose, thank you. While it's
fine for people to feel this or that, it doesn't always mean it's true or correct,
especially if/when certain facts indicate otherwise.

 

[Premiere]

However, there's a couple of legal
decisions indicating domain names as "creatures of contract", and that same
contract with your registrar defines your responsibilities and relationships

When the money to pain ratio is low for the registrars, all the nuisances that were innocuous, inane and rare become common for title holders.
Rewards for kicking a title holder off their property will become so high that there is no way it won't happen a hundred fold.

It is government which time and time again sees this happen throughout history and eventually changes laws to prevent such actions. Every time something ordinary and slightly valuable improves to the point of becoming a massive generator of wealth, ordinary people lose their property or lives. In this case I doubt lives are being lost which is a good thing. But livelyhoods can easily be wiped out, and just the fact that you will be kicked off your property because someone else wants it should cause you concern.

Oddly enough, since we have little protection against such actions they will be commonplace in a queerily brief time frame. Those of us who can see the light at the end of the tunnel agree that domainng may be weak now, and PPC may be near dead, but big changes are due in the years forward. Domains may be the gold mines of the future. Would you like to spend 90% of your time fighting for your domain's life and your right to property when your ship finally comes in?

This is my personal theory and the way I look at this situation. I don't expect the rest of the world to see history the way I do, and I could care less. But I am holding the "I told you so" stick. It will be years before I can shake it at anyone.

 

[Dave_Z]

Would you like to spend 90% of your time fighting for your domain's life and your right to property when your ship finally comes in?

Your so-called "rights" towards your domain name is dictated by your contract
with your registrar. You won't have rights to it the moment it expires and you
don't renew your registrar's agreement, even if you believe otherwise.

If you don't want to lose your rights to it, then don't let it expire and do your
best to stay in compliance with your registration agreement. And that's not a
theory as that's been tested in a court of law:

http://davezan.com/sizevsnsi.txt

Read sections II & III of that decision. And feel free to lookup the Umbro case
as well.

 

[YAYnames.com]

Unfortunately it's not. Search around and you'll find how Go Daddy fixed that,
and Network Solutions (last I heard) reduced their hold period to 30 days but
can be removed.

ICANN changed the rules, and the registrars try to circumvent them, but things get more favorable for registrants and more difficult for registrars to rig the game in their favor.

If nobody speaks up when ICANN publishes requests for comment. Nothing changes.

Aren't many of us trying to get one over another in some way?

All those in favor of having the registrars "get one over" on domainers be quiet!!!

All those in favor of a competitive marketplace, speak up and tell ICANN you want a crack at those 6000 to 8000 domains per month that are being tasted and appropriated by Tucows alone (who knows how many expired names other registrars are appropriating). Send your emails here: [email protected]

You can see what others have posted here:
http://forum.icann.org/lists/raa-consultation/

Only 4 days left!

 

[Premiere]

If you don't want to lose your rights to it, then don't let it expire and do your best to stay in compliance with your registration agreement.

That's like reminding me not to die when my house payment is due. We are talking about what happens when the unfortunate domain is not renewed.

Award it to the registrar? Why? Didn't they agree in 1995 not to take domains?

Do you really think that if one registrar gets away with it that it's okay? That soon everyone will have tons of registry traffic and thousands of billion dollar domains will be dropping in the registrars laps every day and they'll be madly rich?

No, this is about rights to property. When you went to court to fight off Ford for Ford.com did the registrar pay your legal fees? No, because they have a clear and material line that they never crossed.

Now if they suddenly "Own" the rights to domains, then they should be sued for every infraction, regardless of whether it is PPC or TM or anything else.

Make registrars responsible for the litany and litigation and you have a deal. Else they should own and be responsible for nothing except the keeping of the records.

 

[Dave_Z]

No, this is about rights to property.

Property which you have rights to as long as you religiously pay your yearly or
so dues, renew your agreement, and try to be compliant to its terms. I know a
lot of people love to believe they have so-called "rights" to the domain names
they register even after they expire, but your registrar's agreement does not
maintain your rights to it if/when that happens.

I suggest you read it if you haven't done so yet. It doesn't help anyone if they
insist on having such unrealistic expectations, more so if they tell others about
it which isn't actually true.

And no, there was never an agreement not to take domain names back if they
expired. It's been that way since day one.

Besides, Pat's thread is about expired domain names registrars renew and put
into their portfolio without giving others a chance to take a shot at. This isn't
about property rights for expired domains no one else has rights to other than
its sponsoring and paying registrar.

BTW read the ones sent by Danny Younger and Pat Quinn. That'll give you an
idea how to "better" proceed.

 

[Premiere]

Why the registrar? What "rights" do they have?

Why not the public? How did I give up my rights when you forgot to renew repetitive.com? Did I ever have rights? Before the name existed? After creation? After expiration? You must delineate when public rights exist and when they suddenly fail to.

 

[Dave_Z]

You must delineate when public rights exist and when they suddenly fail to.

At the risk of possibly going off-topic from what the OP maybe intended, and
possibly confusing two issues that apparently aren't considered separate, I'll
say one more time that's defined or dictated by your registrar's contract. You
may go ahead and read it if you haven't done so yet.

But just to try to narrow it down, look for something like this in your contract
with your registrar:

http://www.networksolutions.com/legal/static-service-agreement.jsp#general

6. OWNERSHIP. Except as otherwise set forth herein, all right, title and interest in and to all, (i) registered and unregistered trademarks, service marks and logos; (ii) patents, patent applications, and patentable ideas, inventions, and/or improvements; (iii) trade secrets, proprietary information, and know-how; (iv) all divisions, continuations, reissues, renewals, and extensions thereof now existing or hereafter filed, issued, or acquired; (v) registered and unregistered copyrights including, without limitation, any forms, images, audiovisual displays, text, software and (vi) all other intellectual property, proprietary rights or other rights related to intangible property which are used, developed, comprising, embodied in, or practiced in connection with any of the Network Solutions services identified herein ("Network Solutions Intellectual Property Rights") are owned by Network Solutions or its licensors, and you agree to make no claim of interest in or ownership of any such Network Solutions Intellectual Property Rights.

What that means is that Network Solutions owns rights to whatever you are
using from whatever they're offering, and you agree not to claim any interest
or ownership whatsoever in any of them. You may not personally agree with
that, but some courts have upheld such terms in similarly-worded contracts.
(like Network Solutions' agreement was upheld in that decision I linked here in
my previous post...)

And since you mentioned the real estate broker analogy that's popularly used
when trying to explain how domain names work, I'll use a similar one.

Let's say I rented one of YAYnames' apartment units (and that's what we are
really doing towards domain names). I don't renew my lease agreement, I've
taken out all my things, and YAYnames locks out "my" apartment unit.

At that point, it ought to be obvious I no longer have rights (and enforceable
ones at that) towards that apartment unit, and YAYnames can do whatever
he wants with it. But I kid you not that I've read in a legal forum where soooo
many people complained of something similar, and those idiots wanted to sue
to get those apartment units back when they didn't even renew it!

Then you come along, you see YAYnames' apartment unit, become interested
in it, but you find that YAYnames isn't selling or renting it out. Should he then
be forced to lease or sell it to someone?

OTOH, I recently read one lawyer's take about property rights. If I understood
it correctly, nowadays it isn't an issue of who owns what, but what rights are
assigned to all parties concerned.

In this case, one last time, those rights are defined by your contract with the
registrar you're doing business with. Currently there are hardly any laws that'll
maybe define what domain names are or "should" be, but I guarantee you that
enacting such laws will create a host of issues many people won't be prepared
to deal with.

Heck, many people still don't know what domain names are!

 

[Premiere]

Hey I won't even claim that any of us know what domains are. They do not exist. Right now UsedAgain.ME is a statement without meaning because no one has ever registered it. Perhaps no one ever will. But as soon as someone does, it exists and becomes "property" of the "registrar" who has an "agreement" about how they treat this registration. Yet the registrar can't be sued for allowing this property to be created, nor for renting it even if its rat-infested, nor for closing it down and kicking out the tenant. And oddly enough that's where I am having some problem. Because in America it's almost bloody impossible to absolve yourself of all legal responsibilities regarding trademark and copyright and yet claim title and ownership of something you didn't even pay for!

I understand how courts and ICANN have handled these claims in the past. The problem is you can't have your cake and eat it too. So eventually the hammer comes down one way or another. Obviously it will have no real impact on my life as far as I can tell. But as soon as some lobby fighting for public ownership rights decides to sue Netsol or Tucows or whoever over some infraction, years from now it will end up in Supreme Court with all registrars having to be responsible for whatever is registered on their sites. Similar to the way Ebay and YouTube have been held accountable (even if let off), for property they also do not hold but earn money from.

My whole point is that it's best if we put a line in the sand now rather than have the whole industry dragged into higher courts down the road. Either way it's their game to play and I've never known ICANN to listen to me personally. My guess is things will plod along as they always do, and then one day they'll be the usual over-reaction. But that seems to be what America breeds on at times.

 

[InternetMoney]

If someone drops a name at a Registrar it makes some sense that the Registrars can keep it if they want. After a domain expires you can still renew it. A Registrar may charge you an extra fee. The Registrar controls that domain for a while after it expires so it makes sense that they can re-new it for themselves, they can then sell it how they want.

When a domain really expires and wasnt renewed there should be a fair way that everyone should have a chance to get it at reg fee with no one having an advantage. No one should have control of it to auction it. Anyone should be able to put in a buy at reg fee at any Registrar and the winner should be picked randomly. The only other fair way is the first to put in a buy should get it. If a domain expires and you put in a buy first and pay for it and the Registrar doesnt re-new it themself then you get it. Thats a fair way.

 

[YAYnames.com]

I have to post this great quote/observation directly related to this thread, by Rick Schwartz from the most recent DN Journal newsletter:

"I have not even mentioned registrars that are abusing domainers in ways that I just can’t believe. Now they want to grab your expiring domains and keep them for themselves instead of releasing them to the market place. Does anyone in this industry know what conflict of interest is? Maybe they will conveniently forget to send you all those reminders to renew. If they can get your prize domains, is there a reason for them to go out of their way to notify you over and over again to renew a $7 product that may be earning thousands or worth millions? All I can say is it is time for domainers to grow some ***** and stop remaining silent. In my life I have watched pilots lose control of the airline industry and look what we have. I have watched doctors lose control of the medical industry and look what we have. I have watched teachers lose control of the education system and look what we have. Domainers are about to lose control of the domain industry and look at what you HAD!"

... another great interview from Ron Jackson at the Domain Name Journal, well worth a read, check it out!

http://www.dnjournal.com/newsletters/2008/august.htm

 

[YAYnames.com]

I got an email last night from Tim Cole, Chief Registrar Liaison for ICANN, regarding the summary of comments on the RAA.

The most encouraging item comes in the At Large Advisory Committe taking the stand that "warehousing should be addressed", specifically, from the ALAC document:

http://forum.icann.org/lists/raa-consultation/pdfRrL9jVXNEN.pdf

"Other general issues: Since the consultation period, several members of the
user community (and the business constituency in the ICANN community)
have raised concern about domain name warehousing. At the moment there
appears to be no contractual or compliance language that prevents registrars
from “warehousing” expired domain names. We believe this creates an
unfair situation for members of the public who might wish to own a
particular domain name. A number of ICANN-accredited registrars have
admitted to engaging in this practice and the user community has made clear
its objections."

The "user community" -- that's you guys and gals who spoke up and posted comments during the open comment period. This battle is far from over, but to the naysayers and defeatists who said domainers couldn't have an impact on the process - You were wrong.

Cheers to the folks who piped up and made a difference, and kudos also to Michael Berkens for highlighting this issue on his blog: http://www.thedomains.com/2008/10/21/icann-registrar-wharehousing-should-be-addressed/