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@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...)
Hello,
--- JB <info@bwp.net> wrote:
Or holding an auction for a popular name to find it's market
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
George Kirikos wrote: price. 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@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