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
The essence of George's analysis is that the registries may charge whatever they want for specific domain names under these arrangements. i.e. that google.biz might be singled out for a $1mm renewal fee, whereas silllylongnamethatnoonecaresabout.biz would be allowed to renew at $6. I am not arguing against George per se, but rather that my understanding of the agreement isn't consistent with ICANN's stated interpretation, and more importantly, that if their interpretation is correct, these agreements are heinous. (which at least makes them consistent with the other agreements we've seen lately.) Mawaki Chango wrote: 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 (newregistrations 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 andc) 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 someonewould havenotto forward it] --- Ross Rader <ross@xxxxxxxxxx> wrote:George - I understand what you've laid out, but your analysisignores the fact that the contract is for the provisioning of initial registration and renewal of those registration of domain names,specific domain names. I don't see how one could possibleinterpretthethe definition of these services to include tiered pricing for the services based on new criteria that don't fix the existing definition ofcurrent registry services. In other words, the registries have a contract to provideregistration services for all names in the namespace at the prices includedin theagreement.They are still providing registration services for all names.They arestill providing it for prices that are "in the agreement". The contracts specifically state an initial fee, one that isidenticalfor all domains. However, registries are free to amend thepricingschedule in any way they see fit, as long as it is not in amannerforbidden by the contract.They do not have a contract for the provision of some of theseservices at one price, and the provision of the same service to otherpeopleat a different price. i.e. there is no registry service that providesforthatthe sale of specific domain names, there is only a registry serviceprovides for the sale of new registrations and renewedregistrationsin the entire namespace. There is a huge difference between thesale ofa 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.pdfThe first sentence of page 80 is: "Initial Registration. Registrar agrees to pay the non-refundableamounts 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 "setforthbelow". The words on page 81 are "Registry Operator reserves the right to increase the Fees set forth above prospectively upon six monthsadvancenotice to Registrar." A price schedule fits that definition. That table of values canbecalled "fees". There can be many other possible forms. Only formsthatdo not provide equal access to all registrars are forbidden, i.e.dueto section 7.1 of page 17:http://www.icann.org/tlds/agreements/biz/registry-agmt-28jul06.pdfFees have been increased, with six months notice. They haveincreasedby varying amounts (indeed, some have DECREASED, but that's oktoo).The contract does not forbid this.I can't believe that Vint has lost track of this distinction.And ifhe has, if ICANN has, we are all in much worse shape than wethought."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 ofhttp://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 atdictate.; Toorder the use of (a medicine or other treatment). To establishrules,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.Howelse would volume pricing be able to be implemented, exceptthrough atable of some sort, a modification of page 80's box? Since theredo notappear to be any words that prescribe or place limits on whatgoes inthe box (besides 7.1 for equal access amongst registrars), differential/tiered domain by domain pricing can go into thatbox.All one needs to do is find the specific words in the contractthatforbid that confine how that box can change. John Jeffreycouldn't,neither could external counsel, or 2 other registrars (who've notgonepublic 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 boxcouldchange. Until someone finds that limit by pointing to a line inthecontract, or adds a term to the contract to create a limitation,thendifferential/tiered pricing might become a reality. I asked Jeff Neuman on the GA list directly, after a series ofmessagesback 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 matterthatthe draft contracts be amended to forbid differential pricing onadomain-by-domain basis, i.e. to forbid .tv-style non-neutral and discriminatory pricing?" Jeff chose that moment to stop participation in the discussions(hehasn't posted since). One can read the full archives, http://gnso.icann.org/mailing-lists/archives/ga/index.html ,startingfrom 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 withraisingprices 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,thenwhy not agree to caps? You can follow the thread and see wherethatwent. If the registries agree to amend the contracts, there is noissue. i.e.one can clarify the language to be more explicit and not permitthesediffering opinions (in which I appear to be in the majority viewatpresent, although occasionally the majority is incorrect). With language that has perfect clarity, there'd be unanimity as towhat thecontract 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'sinterpretation,external counsel's interpretation, and want to reserve the rightto doas they please later? 3 phone calls, one to each registry operator, to see if they wishtoadd clarity to the contract. See what they say. Would ICANN haveanyreason to not accept that added clarity? What's their greatfear....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.infoand.org are similar, albeit different page numbers, etc.). I'mnot amember of the Registars Constituency or Council lists, so you'dneed toforward this reply to them. You can confirm with John Jeffrey or Vint Cerf that they don'tdisagreewith the interpretation, namely that nothing in the newcontractsforbids tiered/differential pricing on a domain by domainbasis:A] The contract between the registry and registrars must be"nondiscriminatory", as per Article 7 (section 7.1) of the maincontract(page 17 of the .biz version):http://www.icann.org/tlds/agreements/biz/registry-agmt-28jul06.pdfBut, if you read the language very carefully, all it talksabout isequal access, equal treatment. It does not forbid a pricingschedulepricing).for different domain names (i.e. .tv has this differentialB] When one views pages 80 and 81 of the Appendix document(ExhibitE):http://www.icann.org/tlds/agreements/biz/registry-agmt-app-28jul06.pdfthe last sentence does not prescribe any restriction on howpricescanincrease, or forbid differential pricing. Indeed, aprofit-maximizingregistry could immediately announce that the fees in Appendix Earereplaced 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 otherformulas.Remember, volume pricing is already allowed by the existingcontracts.That volume pricing is a schedule, too (albeit of a differentstyle).There's no restriction on the type of schedule, it just must be consistent with A] above (i.e. registry can't have a differentpriceschedule for Tucows, GoDaddy, NSI, etc.). C] Nothing in Section 4.1 (page 64) prevents it either. Andsince3.1(b)(V)(A) [page 4 of the main contract] prevents consensuspoliciesfrom influencing pricing, one can't fix this problem later. D] The only place I could find where fees are fixed on a domainbydomain basis are the fees the registry operator pays to ICANN(i.e.page 18 of the main contract, section 7.2). Of course, theregistriesseek cost certainty and non-discrimination for themselves. :)Thisdoesn't affect pricing to registrars, though, and through themtoregistrants --- 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. ifthey don't like the owners of pussy.org, a porn site, theycouldmakethe price be $1 billion/yr to force out the owner, albeit aftera10-year time lag), if my interpretation is correct and I didn'tmissanything. E] There are lots of other problems with these new contracts(i.e.data,presumptive renewal, elimination of price caps, use of trafficetc.), so even if the above issue is "fixed", I'd be againstthem,especially before the DoC rules on the .com settlementagreement,andthe lawsuits (e.g. by www.cfit.info) are concluded. ICANN's lawyers have even said in the CFIT court case documentsthatprice controls in a single supplier market are pro-competitive,solifting the price caps is very hypocritical. These bad newcontractswould create a dangerous precedent for VeriSign to exploit infuturecontract negotiations over operation of the .com registry. Ielaboratedon this at: http://forum.icann.org/lists/biz-tld-agreement/msg00009.html Note that this issue could easily be solved, the loopholeremoved,byhaving ICANN add one sentence to each contract, dictating thatrenewalprices must be identical for all domains. Ask yourself whyICANNandthe registries won't add that sentence. I've been pressing themfor3+weeks on this issue, and they're sticking to their guns, evenafteragreeing on my interpretation of what's not forbidden. Theirpositionis that the 6-month price increase notice period and theability torenew for 10 years is sufficient to prevent a "suicide" move by registries. Ask yourself if you're willing to trust registrieswon'topen Pandora's Box. I'll be around in 10+ years, God willing.I'llbetcurrent 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 asGeorge's message has popped up on both of these lists and I would liketohearmore 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 marketprice.My reading of the contracts is that they wouldn't be allowedtohold atraditional English auction for the domain name, becausethey'dthesehave toset a price on an equal basis for all registrars. It might bepossible,though, as the contracts are so poorly written.Poorly written indeed. I would like to hear the basis for ICANN's opinion. My read ofcontracts is very different (keep in mind that IANAL,NDIPOOTV) inthat 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 specificallyintendedto allow for this type of pricing.i.e. the new contracts state; Main Agreement, "3.1 (d)(iii) Registry Services are, forpurposesof this Agreement, defined as the following: (a) those services that are both (i) operations of the registry criticaltothe following tasks: the receipt of data from registrars concerning registrations of domain names and name servers; provision to registrars of status informationrelatingto 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 Operatorthefeesset forth in Exhibit E for initial and renewal registrationsandother services provided by Registry Operator to Registrar(collectively,"Fees"). Registry Operator reserves the right to increase theFeesprospectively upon six (6) months prior notice to Registrar." Exhibit E to Appendix 8, "Initial Registration Fe(Per DomainName)US$5.30, Renewal Fee (Per Domain Name) US $5.30" In other words, one of the existing Registry Services isprovidinginitial registrations in the .biz namespace. The price forthisservice is currently $5.30. This price for this service may be revisedwithsix months notice.There are no provisions for any service that provides theregistrywith the capability to reserve specific names and make themavailablethrough other means. There are only provisions for registry servicesforinitial and renewal registrations. The wording of these provisionsmakesitvery clear that the pricing of these services is for all initialandrenewal registrations, not for specific initial or renewalregistrationsbased on the string of the domain.I can't for one second believe that Vint's interpretation isinanyway correct and I'd like to hear an absolute officialdeterminationthesebasedon the existing definition of registry services as outlined inproposed agreements. If your interpretation is correct, theentirebasicallydefinition of registry services is flawed in that it wouldmean that Registry Services includes variations on Initial andRenewal registrations that aren't specifically covered in the existing agreement (i.e. the registry can provide whatever variations on thesetwoservices it wants without going through the Registry Services ApprovalProcess). 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-genRegards, -- -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-genRegards, -- -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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