August 2006 - council - lists.icann.org

Domain Name Marketplace Workshop -- Council and constituency members' participation strongly encouraged
by Denise Michel March 21, 2007

March 21, 2007

Your participation in the Domain Name Marketplace Workshop, scheduled for 9:30-12:30 on 27 June in the Salle des Ministres, is strongly encouraged. The workshop will enable ICANN stakeholders to share information about changes and trends in the domain name market. Specifically, it was organized to: provide additional information on the numerous ways value is derived from domain names and how the domain name marketplace has changed in recent years; answer questions about the appropriateness of some of these activities; and help ensure that policy decisions and potential contractual amendments are made with an understanding of the broader impact that such changes may have on market activities. The proposed agenda is posted at <http://icann.org/meetings/marrakech/dn-workshop-27jun06.htm>. Audience members will have opportunities to raise issues, ask questions, and interact with the panel. If you are unable to participate, please share your comments and questions regarding topics covered in the workshop via email to <dn-market-comments(a)icann.org>. Regards, Denise Michel Vice President, Policy Development ICANN denise.michel(a)icann.org

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Statement of Interests for Ross Rader
by Ross Rader Oct. 14, 2006

Oct. 14, 2006

Statement of Interests I am the Director of Research and Innovation for Tucows Inc., an ICANN accredited registrar and internet services vendor. Tucows is a minority shareholder in Afilias LLC, with roughly an 8% shareholding. Neither Tucows, nor I, is in possession of, nor have access to Registry Sensitive or Registry Proprietary information as defined by any relevant registry operating contracts as a result of this relationship. Tucows provides consulting and application hosting services to other registrars and internet services providers. I am not an officer, director, consultant, or employee of any of these customer organizations nor am I specifically involved in providing services to them. The URL for this statement is: http://www.byte.org/blog/_WebPages/StatementofInterestsforRossRader.html -ross

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Council resolution new PDP procedures
by Philip Sheppard Sept. 6, 2006

Sept. 6, 2006

Fellow Council members, we have wittered on for years about the fact the PDP procedures are unsuited to the work of Council. I propose we do something about it. Nothing coming out of the LSE review of the GNSO (sic) will change the fact we need to change them. Bruce please see a proposed Council resolution for consideration at a forthcoming meeting. Philip

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Re: [gtld-council] Outcome of discussion on application fees in Amsterdam
by Mawaki Chango Aug. 31, 2006

Aug. 31, 2006

[amsterdam, about 20 hrs later, out of wifi...] Dear colleagues, I'd like to suggest below two additions (paragraphs 5 [new] and 8) to the outcome to this discussion. I was hoping we would have the opportunity today to review also the outcome of this part of our yesterday discussion, but apparently we won't. I'm however hoping that I will get a response from the committee on this - whatever that is. Thank you for your consideration. Mawaki N.B. Some of the language is taken from .berlin public comment. The recommendation is not that ICANN will necessarily need to implement all the options put forward, but that ICANN takes heed of the issue and consider the proposed options and, possibly, explore some others it may think of. --- Bruce Tonkin <Bruce.Tonkin(a)melbourneit.com.au> wrote: <snip> > > 1. Principle - that ICANN recovers its costs of evaluation from the > application fees > > 2. That the fee will be set at the start of the process. > > 3. Some applications may cost different amounts to evaluate. > Therefore > there maybe different fees depending on the type of application. > > 4. It is possible that applicants could pay different amounts > depending > on what stage in the process the application reaches. 5. It should also be noted that the possible extra-costs that may result from the differences in the applicants' working languages as well as legal systems (as opposed to a specific dominant language and legal system) should not be held against them, and be left to the expense to the concerned communities. After all, the Internet is and must remain a global facility both from the user and demand side and from the operation and supply side. > > 6. ICANN should have a system of grants for applicants that would > find > cost recovery a barrier to entry. This grant would only allow the > applicant to apply, without any presumption that the application > would > be successful. Grant applications would go through an evaluation > process. > > 7. ICANN should evaluate options for funding the grants. 8. In addition to considering the grant options, other options for ICANN to address the same concern may include, but not limited to: - Organizing periodic awareness and training workshops for interested stakeholders on the issues of gTLD operation, with the possible cooperation of relevant global and regional entities or fora; - reducing avoidable indirect costs incurred by the applicant (including shorter and more predictable approval process with fixed and reliable timelines, standardized contracts, public pre-evaluation hearings of applications); - providing assistance during, and reporting with recommendations at the end of, the pre-evaluation hearings. > > > > Regards, > Bruce Tonkin >

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Re: [domains-gen] Vint Cerf/ICANN confirm my interpretation of .biz/info/org proposed contracts -- tiered/differential domain pricing would not be forbidden
by Ross Rader Aug. 23, 2006

Aug. 23, 2006

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(a)tucows.com> 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(a)tucows.com> 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(a)bwp.net> 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(a)discuss.tucows.com >>>> 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(a)discuss.tucows.com >> 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

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Re: [registrars] Re: [domains-gen] Vint Cerf/ICANN confirm my interpretation of .biz/info/org proposed contracts -- tiered/differential domain pricing would not be forbidden
by Ross Rader Aug. 23, 2006

Aug. 23, 2006

Bhavin Turakhia wrote: > One thing I do believe is that given > this latitude, the future in terms of pricing is uncertain I think we all agree on this. I find it marvelous that ICANN devotes several pages to clearly outlining how much money they will receive from the registries while leaving fundamental questions like this wide open. From a governance perspective, I hope that the board expects more from its staff than this. From a policy and operational perspective, its completely unacceptable no matter how you cut it. There needs to be more certainty for registrants in these contracts. Regards, -- -ross rader

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Re: [domains-gen] Vint Cerf/ICANN confirm my interpretation of .biz/info/org proposed contracts -- tiered/differential domain pricing would not be forbidden
by Ross Rader Aug. 23, 2006

Aug. 23, 2006

> 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(a)tucows.com> 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(a)tucows.com> 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(a)tucows.com> 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(a)bwp.net> 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(a)discuss.tucows.com >>>>>> 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(a)discuss.tucows.com >>>> 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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Re: [domains-gen] Vint Cerf/ICANN confirm my interpretation of .biz/info/org proposed contracts -- tiered/differential domain pricing would not be forbidden
by Ross Rader Aug. 23, 2006

Aug. 23, 2006

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 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. 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. 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(a)tucows.com> 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(a)bwp.net> 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(a)discuss.tucows.com >> 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

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Re: [domains-gen] Vint Cerf/ICANN confirm my interpretation of .biz/info/org proposed contracts -- tiered/differential domain pricing would not be forbidden
by Ross Rader Aug. 23, 2006

Aug. 23, 2006

(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(a)bwp.net> 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

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.biz/info/org proposed contracts - pricing implications
by Philip Sheppard Aug. 23, 2006

Aug. 23, 2006

For the information of Council I pass on a list message from the BC list relevant to the .biz/info/org contract renewals. _____ From: BC secretariat [mailto:secretariat@bizconst.org] Sent: Wednesday, August 23, 2006 3:15 PM To: BC List Subject: Vint Cerf/ICANN confirm my interpretation of .biz/info/org proposed contracts -- tiered/differential domain pricing would not be forbidden >From George Kirikos Hi folks, I finally got the "official" word from Vint Cerf of ICANN, "on the record", who confirmed that my interpretation is correct, that differential/tiered pricing on a domain-by-domain basis would not be forbidden under the .biz/info/org proposed contracts. This means that the registries could charge $100,000/yr for sex.biz, $25,000/yr for movies.org, etc. if they wanted to -- it would not be forbidden the way the proposed contracts are currently written. This would represent a powerful pricing weapon for registries, and a fundamental shift in possible domain name pricing, that could lead them to emulate .tv-style price schedules. One can read the proposed contracts at: http://www.icann.org/announcements/announcement-2-28jul06.htm Vint said it would be "suicide" for a registry to do it, because there'd be the 6-month notice period to raise prices and the ability for registrants to renew for up to 10 years at "old prices", that supposedly "protects" registrants. Personally, as a business, my time horizon is a lot longer than 10 years. I wonder if Vint felt introducing "SiteFinder" was suicide, too....history has shown registries will do whatever they can get away with, in order to maximize profits long-term and short-term. I don't think Vint understands the business at all, to think that a lag of 10 years will deter a profit-maximizing registry, esp. VeriSign should it try to match this contractual precedent in .com (and history shows VeriSign will always try to get "more", especially if "another registry" is able to do something -- they used that tactic in .com renegotiations, saying various terms were already in the .net contract, for instance). Just to show one possible future, if PIR feels pressure or has a desire to clean up porn from .org, it could announce that pussy.org (check its Alexa ranking) will have its renewal price be $1 billion/yr. If it takes 10 years to do it, many would wait, and it would not be considered "suicide" for PIR. Who will stand against that as "we're protecting the internet and children from porn", PIR might argue? Leaving this temptation in the contract will likely become a slippery slope, in my opinion, leading to profit-maximizing behaviour by registries to emulate .tv. Acting in the interests of their shareholders, registries are *compelled* to maximize profits. It can be used as a political weapon, too. If a registry disagreed with the views or content of a website for which they were the registry, they could raise the renewal price to $100 billion/yr. 10 years later, that website would not exist at that address, and nothing in the contracts would forbid this pricing behaviour. More likely, it would be used for profit maximization (if Google.com is a $100 billion company, "certainly they are benefiting from their domain name, and can afford our $1 billion/yr renewal fee" one might say -- see the net neutrality debate and tiered pricing for websites that phone and cable companies are pushing....). How far away is tiered domain name pricing?? ICANN would be opening up a Pandora's Box through this contractual loophole, to not forbid .tv style pricing. The mistake would not be able to be corrected, as the contracts explicitly say that Consensus Policies do not apply to pricing issues. Since presumptive renewal exists in these new deals, the contracts are essentially going to live with ICANN forever, if approved. If this pricing power eventually got extended to .com, nothing would prevent the renewal fee for Yahoo.com, GoDaddy.com, Google.com, Tucows.com, Business.com, Sex.com or any other domain in a registry with similar terms to reach $1 billion per year, or any other price that VeriSign or other registry operators wanted to maximize its profits (net-neutrality debate is similar, for bandwidth pricing to websites). You can imagine my VeriSignSucks.com won't last longer than 10 years, if VeriSign had the power to raise the renewal fee to $1 billion/year. :) I believe that it is very important that this loophole be closed, in order to not create the precedent that VeriSign could later exploit for .com, and to protect registrants of .biz/org/info. If it is "suicide", as Vint suggested, then surely a registry that would supposedly never use the power would agree to remove the temptation by adding an appropriate term to the contract. A registry not willing to add that term....well, you know what they might be tempted to do later. If your business horizon is the next quarter, this won't impact you. If it's beyond 10 years, it could impact you. Can you live with that uncertainty?? Feel free to spread the word on the mailing lists or media, and contact Vint (vint(a)google.com) or John Jeffrey (jeffrey(a)icann.org) or other ICANN staffers if you want to confirm things and voice your concerns. Time is of the essence, as the public comment period ends next Monday. Registrants DO NOT know what is coming (the public comment board is almost empty), as it's the summer holidays! (typical ICANN tactic, introduce 500+ page contracts for public comment when everyone is on holiday) Public comments can be sent using the addresses at: http://www.icann.org/announcements/announcement-2-28jul06.htm (be sure to send to all 3 email addresses for all 3 contracts, and also click the link in the email ICANN will send you to authenticate your email address, otherwise your comment doesn't get received) There are a lot of other reasons to be opposed to the proposed contracts, such as the presumptive renewal, the ability to sell traffic data, the removal of price caps, etc. I will be writing a longer document soon, but wanted to give everyone a heads-up, so that you can take appropriate action on your own now, and corroborate things independently with Vint Cerf, John Jeffrey or other ICANN people. These are fundamentally flawed contracts, and should not be approved by ICANN. The precedents these contracts would create are ominous, even worse then the .com proposed settlement agreement (that the DoC has yet to approve). Why is ICANN even renegotiating these registry agreements, when the existing terms don't expire for several years in some cases, and the GNSO PDP process for registry services is ongoing?? Sincerely, George 416-588-0269

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