Re: [domains-gen] Vint Cerf/ICANN confirm my interpretation of .biz/info/org proposed contracts -- tiered/differential domain pricing would not be forbidden
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@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
"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/
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
George Kirikos wrote: pricing).
B] When one views pages 80 and 81 of the Appendix document (Exhibit E):
the last sentence does not prescribe any restriction on how prices can increase, or forbid differential pricing. Indeed, a
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
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
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
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
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
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
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
http://www.icann.org/tlds/agreements/biz/registry-agmt-app-28jul06.pdf profit-maximizing style). price policies that position these 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 _______________________________________________ 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
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@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.
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.
Hi again,
[I can't post to the Registrars or Council lists, so someone would have to forward it]
--- Ross Rader <ross@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
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
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
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
George Kirikos wrote: the pricing people 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
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
forth 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
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
increased 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
order the use of (a medicine or other treatment). To establish rules, laws, or directions."
or 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
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
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
contract, or adds a term to the contract to create a limitation,
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
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,
why not agree to caps? You can follow the thread and see where
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
dictate.; To through a that the then that then that 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
equal access, equal treatment. It does not forbid a pricing schedule for different domain names (i.e. .tv has this differential
about is 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
set a price on an equal basis for all registrars. It might be
George Kirikos wrote: price. they'd have to 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 _______________________________________________ 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
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@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.
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.
Hi again,
[I can't post to the Registrars or Council lists, so someone would have to forward it]
--- Ross Rader <ross@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
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
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
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
George Kirikos wrote: the pricing people 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:
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
http://www.icann.org/tlds/agreements/biz/registry-agmt-app-28jul06.pdf that
do not provide equal access to all registrars are forbidden, i.e. due to section 7.1 of page 17:
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
http://www.icann.org/tlds/agreements/biz/registry-agmt-28jul06.pdf 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
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
"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
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
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
contract, or adds a term to the contract to create a limitation,
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
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,
why not agree to caps? You can follow the thread and see where
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
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):
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
http://www.icann.org/tlds/agreements/biz/registry-agmt-28jul06.pdf 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
increase, or forbid differential pricing. Indeed, a
can 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
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
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...)
George Kirikos wrote: > Hello, > > --- JB <info@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
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
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
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
initial registrations in the .biz namespace. The price for
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
http://www.icann.org/tlds/agreements/biz/registry-agmt-28jul06.pdf ) through a that the then that then that these prices formulas. them, they'd purposes the providing this 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 _______________________________________________ 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
Regards, -- -ross rader general manager, domain direct/netidentity/nameplanet Have you checked out the NetIdentity/Nameplanet Weblog? http://netidentity.weblog.info
On 8/23/06 9:41 AM, "Ross Rader" <ross@tucows.com> wrote:
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.
If it's taught us nothing else, the history of ICANN has shown that what "should" be the rule rarely matters when contract language is susceptible to more than one interpretation. Examples of industry players exploiting supposed grey areas in ICANN contract language are plentiful: the marketing of .NET to everyone in the world, sitefinder, sale of .PRO names to everyone in the world, Tralliance "flipping" .TRAVEL the day it signed its ICANN contract, domain name tasting, registrars stockpiling names by not deleting their customers' expiring registrations, etc. The concern about differential pricing is justified. Perhaps registry to registry competition can prevent sharp practices in the markets for *new* registrations, but it does nothing to protect registrants from such practices when it comes to their renewals. I'm less concerned that a registry might pick out a handful of domains for extraordinary pricing than I am about a registry raising prices across the board for older names. For example, would anything prevent the following: renewal for names first registered before 1996 are $1000/yr., names before 2000 are $500/yr., names before 2004 are $100/yr....you get the picture. This would be classic monopolist behavior; the monopolist charges competitive rates in the area in which it has competition (i.e. new registrations) and adopts monopolistic pricing in the area in which it has locked in customers (i.e., renewals). I'd rather see ICANN lock down the pricing language that wait until someone does something that hurts registrants, so we then have to argue about what "should" happen. -- Bret
participants (3)
-
Bret Fausett -
Mawaki Chango -
Ross Rader