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Re: [ga] ICANN Negotiations -- A Play in Three Acts

  • To: George Kirikos <gkirikos@xxxxxxxxx>, biz-tld-agreement@xxxxxxxxx, info-tld-agreement@xxxxxxxxx, org-tld-agreement@xxxxxxxxx, icann board address <icann-board@xxxxxxxxx>
  • Subject: Re: [ga] ICANN Negotiations -- A Play in Three Acts
  • From: Jeff Williams <jwkckid1@xxxxxxxxxxxxx>
  • Date: Fri, 25 Aug 2006 01:09:00 -0700

George and all former DNSO GA members or other interested
stakeholders/users,

  I think you and many others on this forum know why such provisions
are in these proposed contracts to begin with.  It is simply because
ICANN, meaning mostly the ICANN BoD and staff members, get
the vast amount of their funding from Registries and Registrars, not
Registrants or a real membership, and the ICANN BoD and staff
want or seem to believe they have a need for more $$.  In essence
they are trying to hood wink everyone for more $$, and giving
the  Registries and Registrars and opportunity to get a big increase
in revenues at the same time.

George Kirikos wrote:

> Hello,
>
> --- "Michael D. Palage" <Michael@xxxxxxxxxx> wrote:
> > My personal opinion is that ICANN needs to focus on preventing a
> > registry operator due to its sole source contract from abusing that
> > position within the marketplace by allowing discriminatory pricing.
> > If a
> > registry operator is merely imposing an equitable pricing model on
> > the
> > same class of domain names, that is not discriminatory. As Vint
> > properly
> > noted in his email, it would be virtual suicide for "most" registry
> > operators to abuse this discretion. George and I have discussed on
>
> I think Vint (and it appears Michael, given he described it as
> "properly noted") underestimates the determination of registries to
> engage in discriminatory pricing. If it is supposedly "suicide", why
> negotiate a power into a contract that one does not intend to use? If
> it's a power one would never use, it means it is costless to remove
> that term from the contract.
>
> It's a simple negotiation.
>
> "Registry: We would *never* do that.
> ICANN: Great. Let's write it out of the contract.
> Registry: Done."
>
> Instead, we see something like the following, one might imagine:
>
> ACT I: A fancy restaurant overlooking a beautiful harbour, lunchtime.
> ....
> Registry: We would *never* do *that*.
> ICANN: Great. Let's write it out of the contract.
> Registry: (silence)
> (more silence)
> (the sound of crickets is heard chirping in the distant mountains)
> ICANN: Sorry, I must have mumbled? Did you hear me? Let's write it out
> of the contract.
> Registry: Hmmm, I'm not sure I'm authorized to do that, today.
> (a bead of sweat rolls down his temple)
> ICANN: But you just said you'd *never* do *that*?
> Registry: Yes, you are *absolutely* correct. We did just *say* we would
> *never* do that.
> (winks) I am glad ICANN is listening to us.
> ICANN: So, are we ready to write it out of the contract?
> Registry: Let's not be too hasty. The contract might be perfect just
> the way it is. We wouldn't want to meddle with perfection, would we?
> ICANN: I think we all agree, we would not want to meddle with
> perfection.
> Registry: Great.
> ICANN: So, we're not going to write it out of the contract?
> Registry: I never said that. Maybe we can discuss this over dinner. We
> all want to do the right thing. (smiles)
> ICANN: Of course, we all want to do the right thing. (smiles) (pauses)
> That is ICANN's mission!
> Registry: Yes, it is. You are absolutely correct. I'm glad we are
> discussing this. It demonstrates that ICANN is listening. The public
> doesn't appreciate how well ICANN is listening!
> ICANN: Thank you. We are always listening. We're happy that you agree
> that we are listening. You've been so supportive publicly, saying that
> we are listening. So, you're never going to do *that* right?
> Registry: We've always *said* we would never do *that*.
> ICANN: So, just to be clear. It will never happen or be introduced. Do
> I have that correctly?
> Registry: Doing that would be suicide! A registry who did that would
> lose the trust of the public! How can you ask us whether it will
> happen? (sits forward in seat, glaring)
> ICANN: If it was suicide, it would be true, it could never happen.
> (slumps back in chair)
> Registry: I am glad you are listening to us. You make so many logical
> points. It's a pleasure negotiating with you. (wink)
> ICANN: Thank you. (blushes) So, it's impossible that *it* will happen,
> then?
> Registry: We have *said* it repeatedly, we would *never* do that. You
> know, *anything* is possible. Martians might show up tomorrow, the
> planet could explode, quantum uncertainty,....
> ICANN: I'm glad you remembered I studied science! We know each other so
> well, having spent so much time together. (smiles)
> Registry: Yes, and how is the family?
> ICANN: They're great, thank you for asking. (blushes) But, getting back
> to the contract, you don't think it needs to have a new term added?
> Registry: We never said that. We are open to a long-term fruitful
> partnership with ICANN, and will always do the right thing.
> ICANN: Maybe we should study this issue further?
> Registry: That's a great idea! But, rest assured, I think we agree, we
> will always do the right thing. I think you can safely tell people,
> without further study, it would be suicide and registries will always
> do the right thing. We are willing to go on the record on that point!
> ICANN: So, we can tell people, it would be *suicide*? But, it would
> still be possible, right?
> Registry: Anything is possible. You can tell people, it would be
> *suicide*.
>
> ICANN responds to George: "It would be suicide for a registry to do
> that."
>
> Act II: One year later.....ballroom of a five star hotel
>
> Shareholder at Registry annual meeting: I'm proud that our management
> has increased its profits by 500% in the past year, through the
> introduction of tiered domain name pricing. They all deserve a raise!
> Registry Management: You are all so kind. *beaming* I have said it so
> many times before, but I'll say it again. We will always do the right
> thing *for our shareholders*.
>
> Act III: ICANN Meeting with Registry, at ICANN HQ
>
> ICANN: We're taking a lot of heat from domain registrants and the
> public now that you  raised prices so much, and introduced tiered
> pricing. We have to do something! (look of desperation in eyes) You
> betrayed us, and said it would never happen!
> Registry: I distinctly remember saying that anything is possible.
> ICANN: We have to do something!!
> Registry: We have a contract. Period. We expect ICANN will respect
> what's in the contract. Don't make me bring this up with our lawyers.
> We feel we are solid on this point.
> ICANN: Yes, but you told us you would *never* do *that*!!!!! (jumps up
> and down)
> Registry: Have a seat. You're making me nervous. Have a drink. (fills
> glass). You are absolutely correct, we *did* say that. But,
> circumstances change. What's important is that we have a contract. We
> have a fiduciary duty to our shareholders to do the right thing to
> maximize shareholder value.
> ICANN: THE RIGHT THING??!!?? THE RIGHT THING?? (hyperventilating)
> Registry: We have always said, we will do the right thing.
> ICANN: What are we going to do!!!!!
> Registry: Well, we *could* always open up the contract for
> modifications. We see some possible improvements. We think a win-win
> might be possible. We don't *have* to do this, but ICANN is our
> partner, and we believe in a long and fruitful relationship.
> ICANN: (breathing a sigh of relief) So, you're going to stop doing
> *that*?
> Registry: No, we never said that. We have a contract. That item is
> non-negotiable. But, perhaps we can find other areas of improvement.
> ICANN: Yes! I'm glad you are willing to offer us that olive branch.
> Registry: You're like a member of the family to us. You are important.
> We will do the right thing.
> ICANN: Whew. I knew you were a good guy.
> Registry: I am glad that ICANN is listening to our concerns, and values
> our relationship.
> ICANN: We are always listening. That's part of our mission!
> Registry: Yes, and you fulfill that mission with EXCELLENCE. You are a
> star!
> ICANN: You are so kind. (blushes)
> Registry: I figure we can spend a few months working on amending the
> contract. Let's target the end of July, for a final draft. That'll give
> you time for summer holidays to relax.
> ICANN: That sounds great. You know I have family, and appreciate the
> time off in August.
> Registry: Yes, we know each other so well. You are almost a part of my
> family. (wink)
> ICANN: And we'll let the public have a comment period in August, and be
> ready to make a recommendation to our distinguished Board in September.
> Registry: Yes, we can't leave out the public comment period. I've said
> it before, and I'll say it again, this registry appreciates that ICANN
> is listening, and will take into account the views of the Public.
> ICANN: That is our mission!
> (Curtain Closes)
>
> THE END
>
> :)
>
> > As I tried to discuss with George on the Business constituency list,
> > I
> > believe the provision in the new registry contracts to refer to
> > "appropriate governmental competition authorit[ies]" matters
> > involving
> > new registry services (i.e. differential pricing) is very important.
>
> And as I said on the Business Constituency list, a contract that
> *requires* registrants to lobby governments in order to protect their
> interests is fundamentally flawed. Registries spend a lot more on
> lobbying (and on consulting for that matter -- what's a registry
> consultant doing in the BC again?? I don't see much ecommerce happening
> at the website www.palage.com with 2 words on it) than do individual
> registrants, who would otherwise need to pool their resources to
> challenge registry abuse.
>
> Furthermore, which government has the power to reign in registries?
> Will Neustar be bowing down to the Government of Cuba's competition
> bureau, or that of China? Or that of Canada? What will Canada do if
> Neustar refuses, stop shipments of maple syrup to the USA?
>
> > If I was still on the Board this is the one question that I would be
> > asking. Given ICANN's recent decisions to extricate itself from
> > overseeing registry pricing, are the governmental safeguards that it
> > has
> > in place adequate to protect domain name registrants. Given the
>
> "ICANN's recent decisions to extricate itself from overseeing registry
> pricing" -- Did that go through a GNSO Council review, or PDP? I don't
> think so. Indeed, there's a current PDP on registry services. Thanks
> for the insight that ICANN has already made a decision, and folks
> engaged in the PDP are wasting their time.
>
> Extricating itself from oversight of registry pricing is simply not
> representative of any bottom-up consensus process, and represents an
> ICANN failure, and an attempt by Staff to overthrow the wishes of
> domain registrants, the public, and ICANN's constituencies.
>
> Saying that "the government will protect us", when instead ICANN can
> negotiate proper bulletproof contracts that reflect the concerns of the
> public is basically a win for lawyers and consultants (Mike is both of
> those, what a coincidence....) at the expense of domain registrants, as
> lawyers and consultants will have lots of opportunities in the future
> defending registry abuses.
>
> Sincerely,
>
> George Kirikos
> http://www.kirikos.com/

Regards,

--
Jeffrey A. Williams
Spokesman for INEGroup LLA. - (Over 134k members/stakeholders strong!)
"Obedience of the law is the greatest freedom" -
   Abraham Lincoln

"Credit should go with the performance of duty and not with what is
very often the accident of glory" - Theodore Roosevelt

"If the probability be called P; the injury, L; and the burden, B;
liability depends upon whether B is less than L multiplied by
P: i.e., whether B is less than PL."
United States v. Carroll Towing  (159 F.2d 169 [2d Cir. 1947]
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