RE: [gnso-vi-feb10] Orphans, existance and exploitation of

[Milton L Mueller <mueller@xxxxxxx>]

Kathy
The problem with the orphan exception is that it has got the problem exactly 
backwards. It imposes restrictions upon new entrants and lifts those 
restrictions only AFTER they are teetering on the brink of failure. 

As our conversation with the antitrust economists made clear, CO and 
self-distribution among new TLD applicants should be _presumed legal_, and 
restrictions imposed only if or and when a certain level of market power is 
reached.

No one has ever provided a plausible rationale for what these initial 
restrictions are protecting us against when the new gTLD has no market power. 
All of the arguments (e.g., "co-mingled data") presume that the TLD in question 
is well-established and in high demand and multiple registrars are competing 
for access to it. That will not be the case for most new TLDs.

> -----Original Message-----
> From: owner-gnso-vi-feb10@xxxxxxxxx [mailto:owner-gnso-vi-
> feb10@xxxxxxxxx] On Behalf Of Kathy Kleiman
> Sent: Monday, May 03, 2010 12:14 PM
> To: Eric Brunner-Williams
> Cc: Gnso-vi-feb10@xxxxxxxxx
> Subject: RE: [gnso-vi-feb10] Orphans, existance and exploitation of
> 
> 
> Hi Eric,
> Tx for your question. You are, of course, talking about the gaming of
> the exception, and not its intended purpose. But it's a fair question
> nonetheless.
> 
> The purpose of the orphan exception is to reflect problems we have
> heard
> -- that with so many new gTLDs, a small one may not be picked up by
> registrars, and thus may not be distributed to its intended audience
> (e.g., a small community, a developing country set of groups, etc.).
> 
> It is not intended to provide a way for a gTLD Registry of a new .BLOG
> or .WEB, for example, to keep their domain names to themselves and away
> from the Equal Access provisions for registrars.
> 
> So Eric, would the following restrictions protect against the problems
> you raise?
> 
> 1.  You can only get Orphan status if 3 or fewer registrars offer your
> TLD --  at any point in time;
> 
> 2.  You have to apply in writing to ICANN for Orphan status and there
> is
> a 30 day comment period before you can start operations with your own
> registrar or directly (e.g., 30 days for ICANN-Accredited Registrars to
> say "Yes, I want to offer this gTLD!"; and
> 
> 3.  If, after you start your own registrar operations,  additional
> registrars start offering your names (such that then more than 3
> unaffiliated registrars are offering your TLD) -- then your own
> affiliated registrar is limited to managing X thousand names (e.g.,
> 30,000 or 50,000) -- at which time you must stop distributing your TLD
> domain names entirely.
> 
> Best,
> Kathy
> -----Original Message-----
> From: owner-gnso-vi-feb10@xxxxxxxxx
> [mailto:owner-gnso-vi-feb10@xxxxxxxxx] On Behalf Of Eric
> Brunner-Williams
> Sent: Saturday, May 01, 2010 7:51 AM
> To: Kathy Kleiman
> Cc: Gnso-vi-feb10@xxxxxxxxx
> Subject: [gnso-vi-feb10] Orphans, existance and exploitation of
> 
> 
> Kathy,
> 
> Am I correct in understanding the "orphan" status?
> 
> Suppose Registrar X has a standing offer to every new gTLD registry
> applicant. For those applicants which garner no other offer, X is
> guaranteed 50,000 transactions at a margin it sets.
> 
> X could set the price at 10x the registry price, prompting the
> registry to pay greenmail to get "orphan" status, and sell its
> inventory at the registry price, or fail.
> 
> If the first 50k names are going to be generics and trademarks and so
> on, at sunrise and land rush pricing, will any applicant obtain
> "orphan" status before that inventory is exhausted?
> 
> Thanks in advance,
> Eric
> 
> ------------------
> 
> Kathy Kleiman
> Director of Policy
> .ORG The Public Interest Registry
> Direct: +1 703 889-5756  Mobile: +1 703 371-6846
> 
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