Re: [council] Re: [domains-gen] Vint Cerf/ICANN confirm my interpretation of .biz/info/org proposed contracts -- tiered/differential domain pricing would not be forbidden

[Mawaki Chango <ki_chango@xxxxxxxxx>]

I'm not sure I fully understand this argument, from both sides.

We are talking about TLD registry agreements, and as far as I
understand, registries trade the portion of the DNS space under their
control (.org, .biz, .info, etc.), but they don't sale individual
domain names, which is the business of the registrars - right?

I of course may still need to get a handle of the full scope of the
leverage that those TLD agreements have on the way registrars do
business.

On the other hand meanwhile, I remember Ross drawing, a good while
ago, our attention to the "bad" practices pertaining to the
redemption grace period (the 'drop catchers' problem, etc.), and a
few registrars were pointed out in the article forwarded. I'm not
sure whether the concerned registrars make any profit by allegedly
helping (alerting) the 'drop catchers' at a very early period of
expiration of a specific domain name, or they resell it at the same
flat rate that they would register a new domaine name. If they do
make any profit with such practices (e.g., reselling to a new
owner/intermediary a specific domain name at an increased price based
on, say, the name semantics or supposed business value), then I'm
afraid it might be possible as well for any DNS operator (I mean
registry AND registrar) to single out a specific domain name to which
they would claim to only offer "special" services at a "special"
rate. Unless there is regulation or contractual provision that
clearly prevent that?

Or am I even more confused than I thought?

Mawaki

--- 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.
> 
> 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.
> 
> 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
>