[council] Re: [domains-gen] Vint Cerf/ICANN confirm my interpretation of .biz/info/org proposed contracts -- tiered/differential domain pricing would not be forbidden
Ross Rader
ross at tucows.com
Wed Aug 23 15:33:49 UTC 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 at 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 at 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 at 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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