[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 17:16:52 UTC 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 at 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 at 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 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
>>>> _______________________________________________
>>>> 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
>>
>
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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