RE: [gnso-vi-feb10] RE: Economists

["Mike Rodenbaugh" <icann@xxxxxxxxxxxxxx>]

Personally I also agree with Salop and Wright that equal access requirements
are unnecessary for start-up TLDs with no market power, and indeed would go
even further.  It seems to me that the equal access requirements also are
likely to undermine some new TLD registries, who might have better or more
viable distribution models than using accredited registrars, and who should
have the right to select which distributors sell their products.  Others
seem to agree with that at least insofar as they have designed complicated
exceptions from the requirements, resort to competition authority, etc.
which all sounds like nothing but more work for consultants, with little if
any value to the broader community.  

I have listened carefully to those who would argue that some harm would
befall us all if equal access requirements are eliminated, and I disagree
that any of the purported harms are really harmful or really likely to
happen.

So, while Milton believes elimination of the equal access restrictions is
'too radical to gain consensus', I am not so sure about that and think it
remains a viable option for this WG to recommend.  

Mike Rodenbaugh 
RODENBAUGH LAW
tel/fax:  +1 (415) 738-8087
http://rodenbaugh.com 


-----Original Message-----
From: owner-gnso-vi-feb10@xxxxxxxxx [mailto:owner-gnso-vi-feb10@xxxxxxxxx]
On Behalf Of Milton L Mueller
Sent: Tuesday, May 04, 2010 7:26 AM
To: Kathy Kleiman
Cc: Gnso-vi-feb10@xxxxxxxxx
Subject: [gnso-vi-feb10] RE: Economists


I agree that Salop and Wrights' responses to your questions about equal
access were not very informative, but that was a bilateral problem. They
didn't understand your perspective very well, and I don't think you
understood theirs very well, either. 

Here's the disconnect: Salop and Wright base their position on the amount of
market power actors have. Restrictions such as equal access requirements,
limits on cross ownership and vertical integration only make sense, in their
view, if the firms have some kind of market power. New, start-up TLDs, in
their view, have no market power. Ergo, they don't believe equal access is
necessary. As they put it, a small, start up TLD should be able to have
"selective" access. Whether you agree or disagree with that proposition, do
make an attempt to understand it. 

Personally I tend to agree with them that equal access is unnecessary for
start-up TLDs with no market power, but that is not part of the MMA proposal
because it's probably too radical a change from the status quo to gain
consensus. 

--MM

> -----Original Message-----
> From: Kathy Kleiman [mailto:kKleiman@xxxxxxx]
> Sent: Tuesday, May 04, 2010 9:20 AM
> To: Milton L Mueller
> Cc: Gnso-vi-feb10@xxxxxxxxx
> Subject: Economists
> 
> Hi Milton,
> Re: the antitrust economists, I think they showed us that they had not
> evaluated the impact of the new models (which they proposed) on our
> existing system (of Equal Access).  I asked the question, and they
> didn't even factor it in to their work-- that means that so much of the
> system we rely on for Registries to treat all Registrars equally in
> terms of technical access to domain names, customer service access, and
> EPP and other valuable data, was not even a part of their calculation. I
> think that's a big shortcoming, I think Equal Access has served the
> ICANN Community well, and I think it is a Principle of nearly every
> proposal that has come before this WG.
> 
> Further, the antitrust economists had not calculated the waiver of
> jurisdiction by a registrant into their model development.  That a
> Registrant must waive jurisdiction, e.g., for domain name disputes, to
> the jurisdiction of the Registrar (for example if there is a court
> appeal of a UDRP decision) is huge. It means finding the closest
> registrar, or at least one in your own country, is important, valuable,
> even business-saving or organization-saving.
> 
> I find this WG's approach more systematic, more rigorous and more
> informed than the economists. We know the current system, we know
> Registries, Registrars and Registrants, and we know what is at stake.
> 
> Best, Kathy
> 
> -----Original Message-----
> From: owner-gnso-vi-feb10@xxxxxxxxx
> [mailto:owner-gnso-vi-feb10@xxxxxxxxx] On Behalf Of Milton L Mueller
> Sent: Monday, May 03, 2010 1:52 PM
> To: 'Kathy Kleiman'
> Cc: Gnso-vi-feb10@xxxxxxxxx
> Subject: RE: [gnso-vi-feb10] Orphans, existance and exploitation of
> 
> 
> 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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> >
> > CONFIDENTIALITY NOTE:
> > Proprietary and confidential to .ORG, The Public Interest Registry.
> If
> > received in error, please inform sender and then delete.
> >
> >
> >
> 
> ------------------------
> 
> 
> Kathy Kleiman
> Director of Policy
> .ORG The Public Interest Registry
> Direct: +1 703 889-5756  Mobile: +1 703 371-6846
> 
> Visit us online!
> Check out events & blogs at .ORG Buzz!
> Find us on Facebook | dotorg
> See the .ORG Buzz! Photo Gallery on Flickr
> See our video library on YouTube
> 
> CONFIDENTIALITY NOTE:
> Proprietary and confidential to .ORG, The Public Interest Registry.  If
> received in error, please inform sender and then delete.
> 
> 
> ----------------------
> 
> 
> Kathy Kleiman
> Director of Policy
> .ORG The Public Interest Registry
> Direct: +1 703 889-5756  Mobile: +1 703 371-6846
> 
> Visit us online!
> Check out events & blogs at .ORG Buzz!
> Find us on Facebook | dotorg
> See the .ORG Buzz! Photo Gallery on Flickr
> See our video library on YouTube
> 
> CONFIDENTIALITY NOTE:
> Proprietary and confidential to .ORG, The Public Interest Registry.  If
> received in error, please inform sender and then delete.