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[council] Re: [domains-gen] Vint Cerf/ICANN confirm my interpretation of .biz/info/org proposed contracts -- tiered/differential domain pricing would not be forbidden
- To: George Kirikos <gkirikos@xxxxxxxxx>
- Subject: [council] Re: [domains-gen] Vint Cerf/ICANN confirm my interpretation of .biz/info/org proposed contracts -- tiered/differential domain pricing would not be forbidden
- From: Ross Rader <ross@xxxxxxxxxx>
- Date: Wed, 23 Aug 2006 13:16:52 -0400
- Cc: twomey@xxxxxxxxx, cerf@xxxxxxxxx, vint@xxxxxxxxxx, jeffrey@xxxxxxxxx, registrars@xxxxxxxxxxxxxx, council@xxxxxxxxxxxxxx
- In-reply-to: <20060823165844.80092.qmail@web50014.mail.yahoo.com>
- Organization: Tucows Inc.
- References: <20060823165844.80092.qmail@web50014.mail.yahoo.com>
- Reply-to: ross@xxxxxxxxxx
- Sender: owner-council@xxxxxxxxxxxxxx
- User-agent: Thunderbird 1.5.0.5 (Windows/20060719)
> I disagree (as do others). Why is the creation of a table of values
> suddenly a "new registry service"? A menu at a restaurant, $10 for cod,
> $12 for tuna would be a simple counter example. Maybe at one time, cod
> and tuna were both $8. Same service was provided for patrons who bought
> cod or tuna. But, restaurant later changes the menu, continuing to
> provide identical service, but different fees/prices. The price does
> not have to increase equally.
Because, simply, the menu currently says, "all-you-can-eat-fish - $6 per
portion". The menu you describe deals with specific varieties of fish
differently, which is not what the contracts currently seem to say.
-ross
eorge Kirikos wrote:
Hello,
[once again, I'm not on the Registrars or Council list, so someone
needs to forward this]
--- Ross Rader <ross@xxxxxxxxxx> wrote:
Yes of course, but the price for the Registry Service (new
registrations
and renewal registrations) would have to increase equally in order
for
the service being provided by the Registry to stay the same. They are
allowed to price whatever they want for new registrations and
renewals,
which is a blanketing statement. Singling out specific domains for
different pricing treatment would, IMHO, require the deployment of a
new
registry service.
I disagree (as do others). Why is the creation of a table of values
suddenly a "new registry service"? A menu at a restaurant, $10 for cod,
$12 for tuna would be a simple counter example. Maybe at one time, cod
and tuna were both $8. Same service was provided for patrons who bought
cod or tuna. But, restaurant later changes the menu, continuing to
provide identical service, but different fees/prices. The price does
not have to increase equally.
And keep in mind that I'm not arguing against your view, I'm simply
stating that a) I hope you are wrong and b) you should be wrong and
c)
that an ICANN that thinks you are right is completely and totally out
of
touch with reality.
I wish I was wrong. Why won't ICANN and the registries write in the
language that clarifies this issue, and makes it abundantly clear to a
10 year old what is allowed, and what is forbidden? Instead, we have 3
slightly different 150+ page documents, each of which must be read in
their entirety in order to check the differences. No red-lining, etc.
If they wanted to match VeriSign, why not simply use the unapproved
.com as a baseline (waiting to see if the DoC approves it), and then
add an appendix listing any changes each registry wanted -- - that
makes things very clear, as all the common elements are in one place.
Of course, the simplest solution is to tell the registries to take a
hike -- don't call us, we'll call you. Their agreements specify the
renewal procedures, or re-bids, etc. and shouldn't be wasting our time
at the present when they have years to run in some cases. If a baseball
player wanted to renegotiate his contract in year 2 of a 6 year deal,
what would George Steinbrenner do? And you can bet he would negotiate
harder than ICANN has (this is entirely a one-sided negotiation, with
registries gaining something, and the broader community losing
something).
I propose a conference call. Get everyone on the phone, 3 registry
reps, and any other interested parties. Get it hashed out, whether they
would each add 1 paragraph (or even a sentence) on page 80 of the
appendix (or the equivalent place for .org/info) to their contracts,
explicity forbidding domain-by-domain tiered pricing. The ones that
don't want to do this aren't doing it randomly! (they're profit
maximizing, and want to sneak an advantage through unnoticed, which
they'll exploit later)
Sincerely,
George
416-588-0269
George Kirikos wrote:
Hi again,
[I can't post to the Registrars or Council lists, so someone would
have
to forward it]
--- Ross Rader <ross@xxxxxxxxxx> wrote:
George - I understand what you've laid out, but your analysis
ignores
the fact that the contract is for the provisioning of initial
registration and renewal of those registration of domain names,
not
specific domain names. I don't see how one could possible
interpret
the
definition of these services to include tiered pricing for the
services
based on new criteria that don't fix the existing definition of
the
current registry services.
In other words, the registries have a contract to provide
registration
services for all names in the namespace at the prices included in
the
agreement.
They are still providing registration services for all names. They
are
still providing it for prices that are "in the agreement".
The contracts specifically state an initial fee, one that is
identical
for all domains. However, registries are free to amend the pricing
schedule in any way they see fit, as long as it is not in a manner
forbidden by the contract.
They do not have a contract for the provision of some of these
services
at one price, and the provision of the same service to other
people
at a
different price. i.e. there is no registry service that provides
for
the
sale of specific domain names, there is only a registry service
that
provides for the sale of new registrations and renewed
registrations
in
the entire namespace. There is a huge difference between the sale
of
a
domain name, and registration in a namespace.
A price schedule is perfectly consistent with pages 80 and 81 of:
http://www.icann.org/tlds/agreements/biz/registry-agmt-app-28jul06.pdf
The first sentence of page 80 is:
"Initial Registration. Registrar agrees to pay the non-refundable
amounts as set forth
below: "
and it contains a box below.
Registrar announces, and gives 6 months notice, that the box has
changed as follows (as an example):
sex.biz -- $100,000/yr
music.biz -- $60,000/yr
google.biz -- $1 billion/yr
kirikos.biz -- $100 billion/yr <<--- Neustar loves me :)
ghkghs.biz -- 10 cents/yr
These sure look like "non-refundable amounts" to me, and are "set
forth
below".
The words on page 81 are "Registry Operator reserves the right to
increase the Fees set forth above prospectively upon six months
advance
notice to Registrar."
A price schedule fits that definition. That table of values can be
called "fees". There can be many other possible forms. Only forms
that
do not provide equal access to all registrars are forbidden, i.e.
due
to section 7.1 of page 17:
http://www.icann.org/tlds/agreements/biz/registry-agmt-28jul06.pdf
Fees have been increased, with six months notice. They have
increased
by varying amounts (indeed, some have DECREASED, but that's ok
too).
The contract does not forbid this.
I can't believe that Vint has lost track of this distinction. And
if
he
has, if ICANN has, we are all in much worse shape than we thought.
"3.1 (b)(v) In addition to the other limitations on Consensus
Policies, they shall not:
3.1 (b)(v)(A) prescribe or limit the price of Registry Services;"
(from page 4 of
http://www.icann.org/tlds/agreements/biz/registry-agmt-28jul06.pdf
)
ICANN can't prescribe
http://www.answers.com/prescribe&r=67
"To set down as a rule or guide; enjoin. See synonyms at dictate.;
To
order the use of (a medicine or other treatment). To establish
rules,
laws, or directions."
or limit
http://www.answers.com/limit
"To confine or restrict within a boundary or bounds. ; To fix
definitely; to specify."
the price of registry services. A pricing schedule is perfectly
consistent with the meaning of those words, i.e. not forbidden. How
else would volume pricing be able to be implemented, except through
a
table of some sort, a modification of page 80's box? Since there do
not
appear to be any words that prescribe or place limits on what goes
in
the box (besides 7.1 for equal access amongst registrars),
differential/tiered domain by domain pricing can go into that box.
All one needs to do is find the specific words in the contract that
forbid that confine how that box can change. John Jeffrey couldn't,
neither could external counsel, or 2 other registrars (who've not
gone
public so I won't name them), that's why Vint confirmed the
interpretation. I'd be happy if there was a limit on how that box
could
change. Until someone finds that limit by pointing to a line in the
contract, or adds a term to the contract to create a limitation,
then
differential/tiered pricing might become a reality.
I asked Jeff Neuman on the GA list directly, after a series of
messages
back and forth (all archived) precisely the following:
http://gnso.icann.org/mailing-lists/archives/ga/msg04301.html
"As a sign of good faith, would Neustar agree as a simple matter
that
the draft contracts be amended to forbid differential pricing on a
domain-by-domain basis, i.e. to forbid .tv-style non-neutral and
discriminatory pricing?"
Jeff chose that moment to stop participation in the discussions (he
hasn't posted since).
One can read the full archives,
http://gnso.icann.org/mailing-lists/archives/ga/index.html ,
starting
from July 29th or so, and working to the present.
Registry says:
http://gnso.icann.org/mailing-lists/archives/ga/msg04294.html
" In other words, do you really think .BIZ could get away with
raising
prices above
that for a .com domain name and survive? We do not."
I challenge him directly on that, i.e. if what he says is true,
then
why not agree to caps? You can follow the thread and see where that
went.
If the registries agree to amend the contracts, there is no issue.
i.e.
one can clarify the language to be more explicit and not permit
these
differing opinions (in which I appear to be in the majority view at
present, although occasionally the majority is incorrect). With
language that has perfect clarity, there'd be unanimity as to what
the
contract allows and does not allow. Ask yourself, why won't the
registries agree to clarify it? Is it because the contract is
"perfect"
and can't be improved upon, or is it because they agree with my
interpretation, Vint's interpretation, John Jeffrey's
interpretation,
external counsel's interpretation, and want to reserve the right to
do
as they please later?
3 phone calls, one to each registry operator, to see if they wish
to
add clarity to the contract. See what they say. Would ICANN have
any
reason to not accept that added clarity? What's their great
fear....that, egads, registrants might be protected??!???
Sincerely,
George Kirikos
http://www.kirikos.com/
George Kirikos wrote:
Hi Ross,
Here's my analysis of the .biz variation of the contract (the
.info
and
.org are similar, albeit different page numbers, etc.). I'm not
a
member of the Registars Constituency or Council lists, so you'd
need to
forward this reply to them.
You can confirm with John Jeffrey or Vint Cerf that they don't
disagree
with the interpretation, namely that nothing in the new contracts
forbids tiered/differential pricing on a domain by domain basis:
A] The contract between the registry and registrars must be "non
discriminatory", as per Article 7 (section 7.1) of the main
contract
(page 17 of the .biz version):
http://www.icann.org/tlds/agreements/biz/registry-agmt-28jul06.pdf
But, if you read the language very carefully, all it talks about
is
equal access, equal treatment. It does not forbid a pricing
schedule
for different domain names (i.e. .tv has this differential
pricing).
B] When one views pages 80 and 81 of the Appendix document
(Exhibit
E):
http://www.icann.org/tlds/agreements/biz/registry-agmt-app-28jul06.pdf
the last sentence does not prescribe any restriction on how
prices
can
increase, or forbid differential pricing. Indeed, a
profit-maximizing
registry could immediately announce that the fees in Appendix E
are
replaced by a table of values, e.g. sex.biz = $100,000/yr,
music.biz =
$50,000/yr, gsjkhgkjshgs.biz = $1/yr, and so on, or other
formulas.
Remember, volume pricing is already allowed by the existing
contracts.
That volume pricing is a schedule, too (albeit of a different
style).
There's no restriction on the type of schedule, it just must be
consistent with A] above (i.e. registry can't have a different
price
schedule for Tucows, GoDaddy, NSI, etc.).
C] Nothing in Section 4.1 (page 64) prevents it either. And
since
3.1(b)(V)(A) [page 4 of the main contract] prevents consensus
policies
from influencing pricing, one can't fix this problem later.
D] The only place I could find where fees are fixed on a domain
by
domain basis are the fees the registry operator pays to ICANN
(i.e.
page 18 of the main contract, section 7.2). Of course, the
registries
seek cost certainty and non-discrimination for themselves. :)
This
doesn't affect pricing to registrars, though, and through them to
registrants --- it would still
appear that the registries could introduce price schedules on a
differential domain-by-domain basis (in any manner they choose;
e.g. if
they don't like the owners of pussy.org, a porn site, they could
make
the price be $1 billion/yr to force out the owner, albeit after a
10-year time lag), if my interpretation is correct and I didn't
miss
anything.
E] There are lots of other problems with these new contracts
(i.e.
presumptive renewal, elimination of price caps, use of traffic
data,
etc.), so even if the above issue is "fixed", I'd be against
them,
especially before the DoC rules on the .com settlement
agreement,
and
the lawsuits (e.g. by www.cfit.info) are concluded.
ICANN's lawyers have even said in the CFIT court case documents
that
price controls in a single supplier market are pro-competitive,
so
lifting the price caps is very hypocritical. These bad new
contracts
would create a dangerous precedent for VeriSign to exploit in
future
contract negotiations over operation of the .com registry. I
elaborated
on this at:
http://forum.icann.org/lists/biz-tld-agreement/msg00009.html
Note that this issue could easily be solved, the loophole
removed,
by
having ICANN add one sentence to each contract, dictating that
renewal
prices must be identical for all domains. Ask yourself why ICANN
and
the registries won't add that sentence. I've been pressing them
for
3+
weeks on this issue, and they're sticking to their guns, even
after
agreeing on my interpretation of what's not forbidden. Their
position
is that the 6-month price increase notice period and the ability
to
renew for 10 years is sufficient to prevent a "suicide" move by
registries. Ask yourself if you're willing to trust registries
won't
open Pandora's Box. I'll be around in 10+ years, God willing.
I'll
bet
current ICANN Board members won't be on the board in 10 years.
BTW, see the eloquent comments of Frank Schilling (of
NameAdministration), who has also posted on this matter:
http://forum.icann.org/lists/biz-tld-agreement/msg00005.html
Sincerely,
George Kirikos
http://www.kirikos.com/
--- Ross Rader <ross@xxxxxxxxxx> wrote:
(I have cc'ed this to both the Council and Registrar lists as
George's
message has popped up on both of these lists and I would like to
hear
more from my colleagues in those circles on this subject...)
George Kirikos wrote:
Hello,
--- JB <info@xxxxxxx> wrote:
Or holding an auction for a popular name to find it's market
price.
My reading of the contracts is that they wouldn't be allowed to
hold a
traditional English auction for the domain name, because they'd
have to
set a price on an equal basis for all registrars. It might be
possible,
though, as the contracts are so poorly written.
Poorly written indeed.
I would like to hear the basis for ICANN's opinion. My read of
these
contracts is very different (keep in mind that IANAL, NDIPOOTV)
in
that
the combination of the registry services provisions, and the
definition
of the registry service itself prevents per domain price
discrimination,
in the absence of a different registry service specifically
intended
to
allow for this type of pricing.
i.e. the new contracts state;
Main Agreement, "3.1 (d)(iii) Registry Services are, for
purposes
of this Agreement, defined as the following: (a) those
services that are both (i) operations of the registry critical
to
the following tasks: the receipt of data from registrars
concerning registrations of domain names and name
servers; provision to registrars of status information relating
to the zone servers for the TLD; dissemination of TLD zone
files; operation of the registry zone servers; and
dissemination of contact and other information concerning
domain name server registrations in the TLD as required by
this Agreement; and (ii) provided by the Registry Operator
for the .biz registry as of the Effective Date as set forth on
Appendix 9; (b) other products or services that the Registry
Operator is required to provide because of the establishment
of a Consensus Policy (as defined in Section 3.1(b) above);
(c) any other products or services that only a registry
operator is capable of providing, by reason of its designation
as the registry operator; and (d) material changes to any
Registry Service within the scope of (a), (b) or (c) above.
Appendix 8, "4.1.1 Registrar agrees to pay Registry Operator the
fees
set forth in Exhibit E for initial and renewal registrations and
other
services provided by Registry Operator to Registrar
(collectively,
"Fees"). Registry Operator reserves the right to increase the
Fees
prospectively upon six (6) months prior notice to Registrar."
Exhibit E to Appendix 8, "Initial Registration Fe(Per Domain
Name)
US
$5.30, Renewal Fee (Per Domain Name) US $5.30"
In other words, one of the existing Registry Services is
providing
initial registrations in the .biz namespace. The price for this
service
is currently $5.30. This price for this service may be revised
with
six
months notice.
There are no provisions for any service that provides the
registry
with
the capability to reserve specific names and make them available
through
other means. There are only provisions for registry services for
initial
and renewal registrations. The wording of these provisions makes
it
very
clear that the pricing of these services is for all initial and
renewal
registrations, not for specific initial or renewal registrations
based
on the string of the domain.
I can't for one second believe that Vint's interpretation is in
any
way
correct and I'd like to hear an absolute official determination
based
on
the existing definition of registry services as outlined in
these
proposed agreements. If your interpretation is correct, the
entire
definition of registry services is flawed in that it would
basically
mean that Registry Services includes variations on Initial and
Renewal
registrations that aren't specifically covered in the existing
agreement
(i.e. the registry can provide whatever variations on these two
services
it wants without going through the Registry Services Approval
Process).
Regards,
--
-rr
"Don't be too timid and squeamish about your
actions.
All life is an
experiment.
The more experiments you make the
better."
- Ralph Waldo Emerson
Contact Info:
Ross Rader
Director, Research & Innovation
Tucows Inc.
t. 416.538.5492
c. 416.828.8783
Get Started: http://start.tucows.com
My Blogware: http://www.byte.org
_______________________________________________
domains-gen mailing list
domains-gen@xxxxxxxxxxxxxxxxxx
http://discuss.tucows.com/mailman/listinfo/domains-gen
Regards,
--
-rr
"Don't be too timid and squeamish about your
actions.
All life is an
experiment.
The more experiments you make the
better."
- Ralph Waldo Emerson
Contact Info:
Ross Rader
Director, Research & Innovation
Tucows Inc.
t. 416.538.5492
c. 416.828.8783
Get Started: http://start.tucows.com
My Blogware: http://www.byte.org
_______________________________________________
domains-gen mailing list
domains-gen@xxxxxxxxxxxxxxxxxx
http://discuss.tucows.com/mailman/listinfo/domains-gen
Regards,
--
-rr
"Don't be too timid and squeamish about your
actions.
All life is an
experiment.
The more experiments you make the
better."
- Ralph Waldo Emerson
Contact Info:
Ross Rader
Director, Research & Innovation
Tucows Inc.
t. 416.538.5492
c. 416.828.8783
Get Started: http://start.tucows.com
My Blogware: http://www.byte.org
Regards,
--
-ross rader
general manager,
domain direct/netidentity/nameplanet
Have you checked out the NetIdentity/Nameplanet Weblog?
http://netidentity.weblog.info
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