Laws and auDA bog down

Efforts to streamline and turbo-charge the rules governing Australia's .au Internet domain space are nearing the finishing post. But the home stretch could hide a bog capable of miring the process in litigation.

The task of modernising the creaky administrative infrastructure of the .au space and making it more competitive is under the control of self-regulating industry body auDA.

Though there is no official deadline for launching the new era, auDA -- and the industry -- would like to see the switch thrown in January.

Whether that happens depends largely on Melbourne IT, the domain name seller which currently holds an effective monopoly on the registry, the most lucrative chunk of the .au country code space.

Underpinning the new shape of the .au space is a set of core agreements which auDA is creating through a process of draft, consult and revise. The agreements include a code of practice, registry technical specifications and commercial contracts to govern domain name registry operators and registrars.

Melbourne IT has been active, some might say hyper active, in its critique of the various draft proposals put forward by auDA.

The most recent exchanges involving the two parties concerned registry technical specifications and the size o fauDA's budget, to which Melbourne IT is the prime contributor.

The current bone of contention centres on a draft Registrar Agreement, the contract that registrars of .au names will have to sign with auDA in order to sell .au names or sign up resellers.

Legal firm Mallesons Stephen Jaques, retained by Melbourne IT to assess auDA's draft agreement, has produced a scathing commentary on its alleged shortcomings.

They have uncovered "serious legal deficiencies" which could make the agreement legally unenforceable in its current form, says Melbourne IT chief executive Adrian Kloeden.

According to Mallesons' partner John Swinson, the draft agreement:

- potentially breaches both the Trade Practices Act and ASX listing rules.

- relies on documents which have not yet been finalised, including the registry access protocol, registrar accreditation criteria and an industry code of practice.

This effectively compels registrars to conform toclauses that are not yet in existence.

- gives auDA the ability to unilaterally change key terms and potentially allow it to unilaterally imposeonerous obligations on registrars.

- Fails to impose any liabilities on auDA.

Kloeden says Melbourne IT's criticisms stem from a desire to be constructive and are not a ploy to delay competition and prolong its favourable market position. "We are a global leader in domain names and have had an opportunity to observe world best practice and world worst practice. We have seen the consequences of gettting it wrong."

He said it would be "premature" to talk of resorting to litigation if Melbourne IT's concerns about the agreement are not addressed.

However, some concerns, such as breaches of ASX listing rules or the Trade Practices Act "have a higher order of magnitude as a legal issue than something more innocuous."

AuDA chief executive Chris Disspain noted Melbourne IT had submitted nine of the 14 industry responses to the Registrar Agreement.

Its submissions "will be considered by us and our lawyers....we will decide which are relevant," he said.

Internet Industry Association executive director Peter Coroneos said he was confident auDA would take the time to consider industry comments even if it that affected its ability to launch the new regime in January.

"We believe competition in the domain name space will be beneficial but it should not proceed at the cost of stability which might occur if auDA were to proceed with agreements that invite legal challenges," Coroneos said..

"If you precipitate competition for its own sake without structures that are robust in the face of possiblelegal challenges, you could end up with litigation and paralysis."

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Pete Young

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